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Gujarat High Court · body

2016 DIGILAW 1531 (GUJ)

State of Gujarat v. Rajeshbhai Laxman Makwana

2016-07-28

ANANT S.DAVE, B.N.KARIA

body2016
JUDGMENT : B.N. Karia, J. 1. The present appeal under Section 378(1)(3) of the Code of Criminal Procedure, 1973, is preferred by the appellant-State of Gujarat, against the judgment and order of acquittal dated 06.04.2005, passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Bhavnagar, in Sessions Case No. 12 of 2005. 2. The case of the prosecution in brief is that the present accused were harassing the deceased Induben mentally and physically, since more than last three years. It is also the case of the prosecution that the accused herein had demanded money from the deceased Induben and the deceased Induben being unable to bring the money so demanded, the accused pushed the deceased on a burning stove on 28.08.2004, at 20:30 hours, with knowledge and intention that such an act can cause death of the victim. Thus, the accused were charged for the offences punishable under Sections 302, 307, 498-(A) read with section 114 of the Indian Penal Code. 3. Upon filing of the complaint, investigation was carried out and the accused were arrested and charge sheet was submitted in the Court of the learned J.M.F.C. However, as the case was exclusively triable by the Court of Sessions, the same was committed to Sessions Court. Thereafter, charges were framed against the accused persons. The accused pleaded 'not guilty' and claimed to be tried. 4. During the trial, the prosecution has examined the following witnesses:- Sr. No. Name of the witnesses Exh. No. 1. Dr. Pranavkumar Subodhkumar Sinha 13 2. Mukeshbhai Laxmanbhai 32 3. Kankuben wife of Laxmanbhai 34 4. Jaysukhlal Damodarbhai 35 5. Karimbhai Hasambhai 37 6. Dr. Ganeshbhai Pyarelal Govekar 40 7. Totaram Moolchand Jobanputra 42 8. Dr. Anand Dhirajlal Raanigaa 46 9. Vaghjibhai Meghjibhai 48 10. Gangaben Amrabhai 50 11. Narendrasinh Popatbha Gohil 51 12. Bhalchandra Raghunath Kamli 52 13. Mohanbhai Ranabhai Baraiya 54 14. Arjanbhai Kankabhai Vagadiya 62 5. The prosecution has also produced and relied upon the following documentary evidences:- Sr. No. Particulars of the documents Exh. no. 1. Medical Certificate 14 2. Yadi of the Medical Officer, Umrala 15 3. Yadi to the Executive Magistrate for Inquest 16 4. Inquest Panchnama 17 5. Death Form 18 6. Yadi sent to the Medical Officer for conducting PM 19 7. Yadi sent to the Executive Magistrate to record Dying Declaration 20 8. Dying Declaration 21 9. no. 1. Medical Certificate 14 2. Yadi of the Medical Officer, Umrala 15 3. Yadi to the Executive Magistrate for Inquest 16 4. Inquest Panchnama 17 5. Death Form 18 6. Yadi sent to the Medical Officer for conducting PM 19 7. Yadi sent to the Executive Magistrate to record Dying Declaration 20 8. Dying Declaration 21 9. Receipt of dead body returned 22 10. Yadi of the Circle Inspector along with the map 23 11. Deposition of Induben before A.S.I. 24 12. Yadi to N.P. Gohil from PSO, Umrala 25 13. Yadi to ASI from PSO, Umrala 26 14. Wireless message to Police Officer, Botad. 27 15. Yadi to hospital duty to police constable 28 16. Wireless message 29 17. Arrest memo of the accused 30, 31 18. Complaint 33 19. Panchnama of the place of offence 36 20. PM Note 41 21. Yadi to Executive Magistrate, Bhavnagar to take Dying Declaration 43 22. Dying declaration taken by the Executive Magistrate from the deceased 44 23. Original case papers of the hospital 47 24. Panchnama of body position 49 25. Original copy of station diary 53 26. Report of the FSL, Bhavnagar 55 27. Dispatch note 56 28 Receipt of muddamal received by FSL Junagadh 57 29. Analysis Report of FSL, Junagadh 58 30 Report of heavy offence 59 31. Yadi sent to Umrala court to insert section 60 32. Dropping and closing pursis of APP 61 33. Yadi by Police Officer, Botad, to register offence 63 6. We have heard Ms. Moxa Thakker, learned Additional Public Prosecutor, for the appellant-State and Mr. H.D. Chudasma, learned advocate for the original complainant as well as Mr. Dharmesh D. Nanavati, learned advocate for the respondent/accused. 7. It is submitted by Ms. Moxa Thakker, learned APP for the appellant/State that the order of acquittal passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Bhavnagar, in Sessions Case No. 12/05 dated 06.04.2005, is contrary to law and evidence on record. That prosecution has submitted material evidence on record by examining witnesses namely Mukeshbhai Laxmanbhai Exh. 32, mother of the deceased Induben Exh. 34, Deputy Mamlatdar Totaram Moolchand Jobanputra at Ex. 42, clearly involve the accused in committing the offence. However, the learned trial judge has committed grave error in not believing their testimonies on oath. That prosecution has submitted material evidence on record by examining witnesses namely Mukeshbhai Laxmanbhai Exh. 32, mother of the deceased Induben Exh. 34, Deputy Mamlatdar Totaram Moolchand Jobanputra at Ex. 42, clearly involve the accused in committing the offence. However, the learned trial judge has committed grave error in not believing their testimonies on oath. That, dying declaration of the deceased was recorded by the Executive Magistrate Totaram Moolchand Jobanputra wherein it is clearly stated by the deceased in conscious state of mind that her husband-accused No. 1, poured kerosene on her and pushed her on a burning stove, and thereby, she received burn injuries. She has further stated that there was often quarrel between her and the accused. That, Executive Magistrate is an independent witness and he has no enmity with the accused, and therefore, this evidence must be considered in a proper way. Before recording dying declaration by this witness, an endorsement from the doctor to the effect that the deceased was in full conscious state of mind to give dying declaration and hence, was taken by him. Hence, it was taken in its true spirit. That, the first dying declaration, while being recorded, it was under pressure of the accused and as per their instructions given to the deceased as nobody from her parental house were present at the time of recording the first dying declaration, or a statement before the police that while admitted in hospital at Bhavnagar deceased has given history of torturing herself, being tired of by the cruelty from the relatives of her husband. That, accused were harassing the deceased Induben mentally and physically since more than three years and were used to demand money from her and when she did not meet with the demand, on 28.08.2004 at about 20:30 hours, in their house at village Dhola, taluka Umrala with an intention and knowledge to kill her, pushed the deceased on a burning stove, and thereby, received serious burn injuries which resulted into her death. 8. Learned APP Ms. Moxa Thakker, has also invited attention of this Court to the place of Panchnama and the map prepared during the investigation. 8. Learned APP Ms. Moxa Thakker, has also invited attention of this Court to the place of Panchnama and the map prepared during the investigation. She further argued that no other articles were burnt in the house, there was no question to go after the incidence to the residence of her jeth and jethani, that false dying declaration was given under the influence of brother and influence of the in-laws by the deceased which cannot be relied. In support of her arguments, she has placed her reliance on 1999 Cr.L.J. 4055 and ultimately it was requested by her to quash and set aside the impugned judgment and order passed by the learned trial judge acquitting the accused and to allow this appeal. 9. Learned advocate Mr. H.D. Chudasma, for the original complainant has supported the arguments advanced by the learned APP and declared that no further argument is required to be made by him. 10. On the other side, Mr. Dharmesh D. Nanavati, learned advocate for the respondent-accused vehemently opposed the submissions made by the learned APP and supported the findings arrived at by the learned trial judge in his judgment and order acquitting the accused. He has further argued that after the incident, the deceased was taken immediately to doctor at Umrala for treatment and at that time she was conscious. That her dying declaration was recorded by the Executive Magistrate, wherein she has clearly stated that while heating the water on stove at about 8:30 p.m., accidentally her saree came in contact with the burning stove, hence, she received burn injuries. The doctor Pranavkumar Sinha has also supported the statement of the deceased that it was an accidental case, when she was brought to him for treatment. As per statement of this doctor, she was conscious while examining her. In presence of the Executive Magistrate, her dying declaration was recorded, and thereafter, she was shifted to Civil Hospital, Bhavnagar. That, statement of deceased was recorded before the police, wherein also, she has raised no grievance against the accused. That, second dying declaration cannot be relied upon by the prosecution, as it was taken later in point of time. That, if two views are possible, the view favourable to the accused should be taken. That, statement of deceased was recorded before the police, wherein also, she has raised no grievance against the accused. That, second dying declaration cannot be relied upon by the prosecution, as it was taken later in point of time. That, if two views are possible, the view favourable to the accused should be taken. That, the learned trial judge has committed no error in acquitting the accused, considering the evidence produced by the prosecution as it was completely doubtful and not reliable. That order passed by the learned trial judge cannot be said to be perverse or illegal while not accepting the prosecution version. Hence, it was requested by him to dismiss the appeal. In support of his arguments, he has relied on the decisions in the cases of (1) State of Andhra Pradesh vs. P. Khaja Hussain reported in (2009) 15 SCC 120 , (2) Mukeshbhai Gopalbhai Barot vs. State of Gujarat, reported in (2010) 12 SCC 2224, and (3) Harjit Kaur vs. State of Punjab, reported in 1999 CRI.L.J. 4055. 11. In the case of State of Andhra Pradesh vs. P. Khaja Hussain (Supra), multiple dying declarations were recorded and material inconsistencies were found. Conviction of the accused was based on such dying declarations. There was no explanation forwarded by the prosecution for insisting on recording second dying declaration within a short time, after recording of the first one. There were variations in two dying declarations and also not trivial in nature, and therefore, it was held by the Hon'ble Supreme Court that the acquittal of respondent did not warrant interference. In this case also, two dying declarations are placed on record. Second dying declaration was recorded on very next day of the incident and there are variations not trivial in nature. No explanation is forwarded by the prosecution on necessity of recording second dying declaration on the very next day of recording of first dying declaration. Therefore, the view taken by the learned trial judge cannot be considered to be perverse or illegal. 12. Having considered facts of the case, submissions made by the learned advocates for respective parties, record of the court, it appears that in the impugned judgment, the learned trial judge has observed that there are so many omissions and contradictions in evidence of the prosecution witnesses. 12. Having considered facts of the case, submissions made by the learned advocates for respective parties, record of the court, it appears that in the impugned judgment, the learned trial judge has observed that there are so many omissions and contradictions in evidence of the prosecution witnesses. This discrepancies have been meticulously noted by the learned trial judge, and therefore, as per the observations made by the learned judge of the trial Court, the case of the prosecution was held doubtful and the accused were acquitted. Before discussing the issue involved in this case and considering the position of the prosecution witnesses, their cross examinations from defence, it is true that at a material point, the prosecution witnesses have made certain changes or modified their statements before the Court against their police statements recorded under Section 162 of the Cr.P.C. Here, this Court would like to refer to a judgment of the Apex Court in the case of Nallabothu Ramulu & Seetharamaiah and others Vs. State of Andhra Pradesh and allied matter, reported in (2014) 12 SCC 261 , in which the Supreme Court has held as under: "There are so many omissions and contradictions in evidence of prosecution witnesses, that the entire fabric of prosecution case appears to be ridden with gaping holes. These discrepancies have been meticulously noted by trial court-High Court, however, holds that witnesses were examined 5th yrs. after incident and, therefore, such discrepancies are natural. It is true that due to passage of time, witnesses do deviate from their police statements as their memory fades to some extent. Reasonable allowance can be made for such discrepancies. But when such discrepancies make foundation of prosecution case shaky, court has to take strict note thereof. Trial court has meticulously located discrepancies and opined that witnesses have discredited themselves. High court ought not to have overlooked this reasoning of trial court. Hence, acquittal restored". 13. Keeping in mind the above settled position, now let us examine the evidence submitted by the prosecution before the trial Court. Indisputably, there are two dying declarations recorded by the Executive Magistrate of the deceased Induben. High court ought not to have overlooked this reasoning of trial court. Hence, acquittal restored". 13. Keeping in mind the above settled position, now let us examine the evidence submitted by the prosecution before the trial Court. Indisputably, there are two dying declarations recorded by the Executive Magistrate of the deceased Induben. The first was recorded at Umrala in presence of the doctor as well as the Executive Magistrate and the second was recorded before the Executive Magistrate at Sir T. General Hospital at Bhavnagar, wherein concerned doctor has passed an endorsement certifying that the deceased was in a fit state of mind, conscious and able to give dying declaration. It is also pertinent to note that, statement of the deceased Induben was also recorded before the police. Prosecution has examined Dr. Pranavkumar Subodhkumar Sinha, Exh. 13. The dying declaration recorded before the Umrala of the deceased was produced vide Exh. 24, while the second dying declaration at Bhavnagar Hospital was produced vide Exh. 44. It appears that before recording dying declaration, Dy. S.P., Botad, has preferred a yadi for recording dying declaration of the deceased, which is produced at Exh. 43. The Dy. S.P. was also examined as a prosecution witness vide Exh. 62 and another Police Officer Mr. N.P. Gohil at Exh. 51. The complainant-Mukeshbhai who is brother of the deceased is examined vide Exh. 32. It is pertinent to note that the second dying declaration of the deceased recorded on the next day of the incident in Sir T General Hospital at Bhavnagar was not produced before the Court or was not part of the charge sheet. For the first time before the Court in a trial, while questioning to the witness, this fact came to be noticed that second dying declaration was recorded. The complainant Mukeshbhai in his testimony Exh. 32 has admitted that he had tried to get recorded second dying declaration of the deceased, which was recorded under his instructions. The Executive Magistrate was known to this witness-complainant. If we consider the yadi prepared by the Dy. S.P. to record dying declaration of the deceased Exh. 43, there is no mention that with whom this yadi was forwarded to the Executive Magistrate. Doctor Anand Dhirajlal was examined vide Exh. 46, has accepted that the patient was never examined by him. The Executive Magistrate was known to this witness-complainant. If we consider the yadi prepared by the Dy. S.P. to record dying declaration of the deceased Exh. 43, there is no mention that with whom this yadi was forwarded to the Executive Magistrate. Doctor Anand Dhirajlal was examined vide Exh. 46, has accepted that the patient was never examined by him. The Executive Magistrate Totaram Moolchand Jobanputra who has recorded the second dying declaration in his deposition at Exh. 42 has admitted that he had asked two questions to the deceased, particularly, 1) what had happened and 2) what were the reasons. There is no evidence produced by the prosecution that any yadi was forwarded from the hospital. Doctor G P Govekar, prosecution witness examined vide Exh. 40 has stated that he is unable to opine whether the deceased has received burn injuries with an intention to murder her or had tried to commit suicide or it was an accidental case. The prosecution is bound to prove under Section 45 of the Indian Evidence Act, the fact that in what manner the deceased was expired, which is clearly failed by the prosecution. If we consider the deposition of the police officers, particularly, A.S.I. Bhalchandra Raghunath Kamli at Exh. 52, Investigating Officer Mr. Narendrasinh P Gohil, Exh. 51 and Dy. S.P. Mr. Arjanbhai K Vagadia Exh. 62, are inconsistent and contrary to each other. P.W. 11, Shri N.P. Gohil, has stated that till the complaint was received by him, he had not gone to Bhavnagar. The police officer of Umrala police station said that at 3:30 p.m. the complaint was received and it was registered, and thereafter, investigation was handed over to Mr. N.P. Gohil-Head Constable. The complaint was brought by the said witness Mr. Gohil. Shri Gohil says that he had never reached at Bhavnagar before 3:30 p.m. and when he was in Umrala Police Station complaint was handed over to him. While Dy. S.P. Shri Arjanbhai Vagadia says in his deposition at Exh. 62, that Mr. N.P. Gohil was in a company of Dy. S.P., before registering the complaint. However, Dy. S.P. has no idea as to who had written the 'yadi' to the Executive Magistrate and who was author of the yadi. He has no idea that with whom the complaint was forwarded at Umrala. However, the deceased was inquired by this witness but no statement was recorded. S.P., before registering the complaint. However, Dy. S.P. has no idea as to who had written the 'yadi' to the Executive Magistrate and who was author of the yadi. He has no idea that with whom the complaint was forwarded at Umrala. However, the deceased was inquired by this witness but no statement was recorded. He further says that Mr. Gohil came with him in a motor vehicle Gypsy. Mr. Gohil says that he has no idea how he came to Bhavnagar. Prosecution has not examined any of the witnesses who brought the complaint before the Court or writer of the 'yadi'. Mr. Gohil has said that he has recorded the statement of Induben, but he has no idea at what time it was recorded, when it was recorded and no time was mentioned in the statement and even no signature was taken. Therefore, doubt would naturally be created on the statement of this witness Mr. Gohil, that whether infact he has recorded the statement of the deceased or otherwise. If we consider the statement of the deceased, it is stated that her husband says her that, "why she was not burnt, he would pour kerosene on her" and thereafter, he sprinkled kerosene on her body and forced her on a burning primus. Therefore, she fell down on a primus and received burn injuries. If the statement of the deceased is considered to be correct, naturally there would be sign of kerosene at the place of offence, if kerosene was sprinkled on her body. It transpires from the Panchnama of the place of offence that there was no sign of kerosene at the place of offence. In the testimony before the Court, none of the police officials whether Mr. Gohil, Mr. Kamli or Mr. Vagadia, who filed the charge sheet have said that second dying declaration was recorded of the deceased. Therefore, the second dying declaration itself becomes doubtful and cannot be relied upon by the Court. Mr. Vagadia had also admitted that there was no mention in the complaint, "that since last one week her sister was beaten and dowry demand was made". He has also admitted that he had never seen the dying declaration of the deceased recorded in presence of the Executive Magistrate, Bhavnagar. For the first time, he came to know about dying declaration, when he visited the Court. He has also admitted that he had never seen the dying declaration of the deceased recorded in presence of the Executive Magistrate, Bhavnagar. For the first time, he came to know about dying declaration, when he visited the Court. In respect of the second dying declaration, this witness has not received any information or has knowledge whether the deceased was murdered or she received self injuries or by an accident. In a statement made before Mr. Gohil and certificate Exh. 14 issued by doctor Pranavkumar Subodhkumar Sinha in dying declaration Exh 21 and in a 'janvajog entry' before Umrala Police Station, it is stated that while preparing hot water, her saree came in contact with a primus, and therefore, flames of the primus torched her saree and she received burn injuries. Against these facts, brother of the deceased registered a false complaint against the accused and tried to create second dying declaration of the deceased. The testimony of Mr. Jobanputra, Exh. 42, Police Officers Mr. N.P. Gohil, Dy. S.P. Mr. Vagadia and doctor are also contrary to each other, and therefore, it was difficult to accept and rely upon the prosecution case. Relatives of the deceased have tried to establish that deceased was given cruelty by the accused since last one week and by pouring kerosene on her body, she was set ablaze, and that she was also forced to say that while heating the water she had received burn injuries. Such an evidence cannot be relied upon by the Court. It is pertinent to note that till the arrival of the complainant Mukeshbhai-brother of the deceased, no question of recording second dying declaration was created. Mukeshbhai has admitted in his deposition at Exh. 32, that author of the dying declaration was known to him with name and he was Mr. Mukeshbhai Trivedi. But it is clear from the evidence that no dying declaration which is alleged to have been recorded by Mr. Mukeshbhai Trivedi was produced on the record. Second dying declaration was recorded by Mr. Jobanputra, Executive Magistrate, and he kept this document in his custody without entering any inward number of the office. Further, it was not known to any higher officers in respect of this dying declaration. It was not forwarded officially with a report of his office. The doubt is created on the deposition of Mr. Jobanputra, Executive Magistrate, and he kept this document in his custody without entering any inward number of the office. Further, it was not known to any higher officers in respect of this dying declaration. It was not forwarded officially with a report of his office. The doubt is created on the deposition of Mr. Jobanputra also that why this dying declaration was kept in his custody by him and not forwarded to the higher officials or the police. The investigating Officer has no idea that Mr. Jobanputra has recorded the second dying declaration. His name is not mentioned in the charge sheet as a witness, nor even of Mr. Vagadia Dy. S.P. In a statement of the deceased at Umrala before the police, thumb impression of the deceased was taken. While in a statement in a hospital, no thumb impression of the deceased was taken, and therefore, doubt would naturally be created that whether in fact it was the statement of the deceased or otherwise. The doctor has not certified that deceased was mentally fit to give dying declaration at Bhavnagar. This doctor was never examined by the prosecution. Surprisingly, if the prosecution has relied on the case papers issued by the doctor, history given by the deceased as such that due to cruelty given by the relatives it was necessary to examine the doctor, who has recorded history of the deceased at Bhavnagar. If the deceased was able to say to her brother that kerosene was poured by her husband, then she could have certainly declared the same before the doctor at Bhavnagar. But, there is nothing on the medical case papers while giving history to the doctor at Bhavnagar. The doctor who had given treatment to the deceased was never examined by the prosecution. If the deceased was pressurized to give first dying declaration or the statement before the police in favour of the accused, she could have an opportunity to say the same thing while recording her second dying declaration before the Executive Magistrate Mr. Totaram Moolchand Jobanputra. But, it is not done or declared by the deceased. As per her statement before the Executive Magistrate at Bhavnagar, it is stated that her jeth-jethani (i.e. brother-in-law and sister-in-law) informed her husband to murder her, and thereafter, her husband poured kerosene on her body and was forced/pushed to fall on a burning primus. Totaram Moolchand Jobanputra. But, it is not done or declared by the deceased. As per her statement before the Executive Magistrate at Bhavnagar, it is stated that her jeth-jethani (i.e. brother-in-law and sister-in-law) informed her husband to murder her, and thereafter, her husband poured kerosene on her body and was forced/pushed to fall on a burning primus. Whatever the statement given to the Executive Magistrate at Bhavnagar must come in a statement before the police officer Mr. N.P. Gohil, by the deceased. But, contrary facts came on record by the deceased that, "she was beaten and her husband said that if she would not be burnt, he would sprinkle kerosene, and thereafter, her husband sprinkled kerosene on her body". Both the statements are contrary to each other. Therefore, it is very difficult to rely upon the testimony of the police officials Mr. Gohil, Dy. S.P. Mr. Vagadia, the Executive Magistrate and the doctor. It is not proved undoubtedly by the prosecution that first statement in the form of dying declaration by the deceased was not correct. The prosecution has failed to prove that the second dying declaration of the deceased Induben was far from truth. The oral dying declaration alleged to have been given before the prosecution witnesses Kankuben, under these circumstances, cannot be considered. The trial Court had recorded conclusion on examining the records of the proceedings that evidence of the prosecution witnesses is not trustworthy, reliable or cogent, both the dying declarations are contrary to each other and suspicious, and therefore, we find that there is no infirmity in the order impugned calling for interfere in the acquittal recorded by the trial Court. 14. In the aforesaid circumstances, the prosecution case is not proved beyond reasonable doubt. Therefore, this appeal fails and is accordingly dismissed.