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2020 DIGILAW 197 (GUJ)

Bipinbhai Manubhai Parmar v. State Of Gujarat

2020-01-29

V.P.PATEL

body2020
JUDGMENT : 1. The Appellants/Original Accused Nos. 1 and 2 have filed this Appeal under Section 374 (2) of the Code of Criminal Procedure (“the Code” for short) challenging the impugned judgment and order dated 30.9.2004 passed by the learned Additional Sessions Judge, Amreli (hereinafter referred to as “the learned Trial Court”) in Sessions Case No. 9 of 2002. The learned Trial Court has convicted and sentenced the Appellants Accused as under: S. No. Offence Sentence Fine Sentence in default of fine 1 U/s 306 read with Sec.114 of IPC 5 Years RI Rs.2000/- 4 months SI 2 U/s 498A read with Sec.114 of IPC 2 Years RI Rs.1000/- 2 months SI The sentence shall run concurrently and benefit of set of for the period of detention during investigation and trial is granted to the Appellants Accused. 2. Heard learned Advocate Mr. Kirit R. Patel for the Appellants/Original Accused and learned APP Ms. Monali H. Bhatt for the Respondent – State of Gujarat. Facts of the case: 3. The prosecution case according to the FIR is that the complainant - Arunaben Dharamsinh Solanki has lodged a complaint being I-CR No. 83/2001 before the Amreli Taluka Police Station on 3.5,2001. In her complaint she has narrated the incident which took place on 2.5.2001. She has narrated that she is a daily wager and having three daughters and one son. The marriage of her daughter Harshaben was solemnized with Pravinbhai Manubhai Parmar before 7 years of the incident and she is staying at Amrutnagar in Amreli. The marriage of her second daughter named Sonalben was solemnized before two years of the incident with Appellant No.1 - Bipinbhai Manubhai Parmar of Amreli. That Pravinbhai and Bipinbhai both are real brothers. That third daughter named Jyoti is studying in standard eight and her younger son Rahul is staying with her. That her two daughters Harshaben and Sonalben have married in the same house and both her son-in-laws are doing diamond polishing work. That since last more than one and half year, the Appellant No.2 - mother-in-law and Appellant No.1 - sonin- laws have started beating and abusing her two daughters and insisted them to stay separately and thrashing them and expelled them from the house. They even abuse them for small household works and always harassing them physically and mentally. That since last more than one and half year, the Appellant No.2 - mother-in-law and Appellant No.1 - sonin- laws have started beating and abusing her two daughters and insisted them to stay separately and thrashing them and expelled them from the house. They even abuse them for small household works and always harassing them physically and mentally. She has further narrated in her complaint that fifteen days back her daughter Sonal and Bipinbhai have started residing separately but again came back after some time. Thereafter they have irked more and this fact is spoken to her by her daughter Harsha when she came with her son at her house. 3.1 It is further stated in the complaint that in the evening at about 5:30 pm on 2.5.2001 my neighbour named Ahlembhai called her at his house to attend a telephone call from her daughter Jyoti who told her on phone that she is speaking from Amrutnagar where Sonalben and Harshaben both have set ablaze. She told her to come immediately and therefore she had immediately rushed there along with Dilavarbhai and Manjuben and Nattubhai to Amrutnagar in a rickshaw. She has further narrated in her complaint that as soon as she reached the spot, what they had seen there is that my daughter was lying on the floor and wriggling due to extensive and severe burns over her body. The complainant tried to talk to her daughter but she could not speak anything. That her another daughter Harshaben was not at home. On asking Kasturben – Appellant No.2, who is the mother-in-law of her daughters, she told her that both have burnt and came to know that Harsa was removed to the hospital and therefore they had rushed to the hospital and her neighbour Ahmalbhai too came there. She has seen that Harshaben has been hospitalized and treatment was going on and that her son-in-law Pravinbhai was present there. She has seen that Harshaben has been hospitalized and treatment was going on and that her son-in-law Pravinbhai was present there. On asking Harsha, she told her that a quarrel took place between her mother-in-law and both of them and in that quarrel her mother-in-law and son-in-law Bipinbhai threatened to remove them i.e. herself and Sonal from their house and beaten them and insisted both of them to go out of their house immediately and abused her daughters and that is why being depressed, both of them had locked themselves in the room and set ablaze by pouring kerosene and Sonal succumbed to burn injuries. That thereafter the complainant has informed her relatives on phone and called them there. That she came to know that during treatment her daughter Harshaben also died in the night. 3.2 After completing the investigation, the Investigating Officer has filed chargedsheet before the Court of Metropolitan Magistrate which was registered as Criminal Case. The learned Chief Metropolitan Magistrate thereafter committed the case under Section 209 of the Code as the offence is triable by the Sessions Court. The case was committed to court of Sessions and the said case was registered as Sessions Case No. 9 of 2002. The learned Trial Court has framed charge for the offence punishable under Sections 498A and 306 r/w Section 114 of IPC. The prosecution has examined 11 witnesses and produced 17 documentary evidence before the learned Trial Court. Thereafter further statement of accused under Section 313 of the Code was recorded. After hearing the defence advocate and the APP learned Trial Court has passed the impugned order and judgment. Arguments for the Appellant: 4. Learned Advocate for the Appellant has argued that the impugned judgment and order of conviction is illegal, unjust, improper and against the evidence on record as well as against the established principle of law and criminal jurisprudence. That the learned Sessions Judge has not considered the material contradiction in the deposition of the witnesses placed on record. There are number of material omissions in the deposition of witnesses, which ought to have been considered by the learned Sessions Judge. That the story of oral dying declaration before the complainant is an exaggerated version. That the same is not supported by the dying declaration recorded by the Executive Magistrate. There are number of material omissions in the deposition of witnesses, which ought to have been considered by the learned Sessions Judge. That the story of oral dying declaration before the complainant is an exaggerated version. That the same is not supported by the dying declaration recorded by the Executive Magistrate. That in the dying declaration at Exh.30, it is nowhere narrated that the deceased were harassed by the Appellants/Original Accused. That the entire story of harassment is created. It is further argued that the story as regards to not attending the burning persons is narrated only with an intention to wrongly implicate the innocent persons. That the dying declaration (hereinafter referred to as “DD”) is not at all believable and reliable as the deceased persons were not able to speak anything due to extensive and severe burn injuries. That the prosecution has examined only the interested witnesses i.e. mother, sister and other friends and relatives etc. of the complainant. That not a single neighbour was examined by the prosecution as regards to the place of incident. That there is no allegation of demand of dowry or any article. That the learned Sessions Judge has not appreciated the judgment cited at the bar by the learned Advocate for the Appellants/Original Accused. He therefore submitted that the impugned judgment and order is required to be quashed and set aside. Learned Advocate for the Appellants/Original Accused has further argued that Appellant No.2 – Kasturben (Original Accused No.2) is at present aged about 74 years and Accused No.1 – Bipinbhai Manubhai Parmar (Original Accused No.1) has a younger sister and one child to look after. He therefore requested to allow the Appeal or in the alternative to minimize the sentence as already undergone by the Appellants/Original Accused. Argument of the Defence: 5. Learned APP has argued that the order convicting the Appellants/Original Accused is according to law and as per the evidence placed on record. That the learned trial court has appreciated the oral as well as documentary evidence in its proper perspective. That the prosecution has examined the mother, sister and other relatives before whom the deceased has stated that she has burnt which is in form of DD. That the Executive Magistrate has recorded DD which is proved beyond reasonable doubt and DD is reliable and trustworthy. That the prosecution has examined the mother, sister and other relatives before whom the deceased has stated that she has burnt which is in form of DD. That the Executive Magistrate has recorded DD which is proved beyond reasonable doubt and DD is reliable and trustworthy. That the prosecution has examined independent witnesses and they have supported the case of the prosecution. That the medical evidence also supported the case of the prosecution. That the conduct of the Appellants/Original Accused also leads to commit an offence under Sections 498(A) and 306 IPC. That the presence of the Appellants/Accused persons at the place of incident is established. Learned APP therefore submitted that the prosecution has established the ingredients of the offence punishable under Section 498(A) and 306 IPC. Learned APP submitted that learned trial court has rightly convicted the Appellants/Accused persons and therefore this court may not interfere with the impugned judgment and order and requested the court to dismiss the Appeal. 5.1 Learned APP has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Varjesh Venkarray Anvekar v. State of Karnataka, reported in (2013) 3 SCC 462 . The observations made in paragraph 28 and 29 reads as under: “28. The tenor of the judgment suggests that wife-beating is a normal facet of married life. Does that mean giving one or two slaps to a wife by a husband just does not matter? We do not think that can be a right approach. It is one thing to say that every wear and tear of married life need not lead to suicide and it is another thing to put it so crudely and suggest that one or two assaults on a woman is an accepted social norm. Judges have to be sensitive to women’s problems. Perhaps the learned Sessions Judge wanted to convey that the circumstances on record were not strong enough to drive Girija to commit suicide. But to make light of slaps given to Girija which resulted in loss of her eyesight is to show extreme insensitivity. Assault on a woman offends her dignity. What effect it will have on a woman depends on the facts and circumstances of each case. There cannot be any generalization on this issue. Our observation, however, must not be understood to mean that in all cases of assault suicide must follow. Assault on a woman offends her dignity. What effect it will have on a woman depends on the facts and circumstances of each case. There cannot be any generalization on this issue. Our observation, however, must not be understood to mean that in all cases of assault suicide must follow. Our objection is to the tenor of the learned Sessions Judge’s observations. We do not suggest that where there is no evidence the court should go out of its way, ferret out evidence and convict the accused in such cases. It is of course the duty of the court to see that an innocent person is not convicted. But it is equally the duty of the court to see that perpetrators of heinous crimes are brought to book. The above-quoted extracts add to the reasons why the learned Sessions Judge’s judgment can be characterized as perverse. They show a mindset which needs to change. There is a phenomenal rise in crime against women and protection granted to women by the Constitution of India and other laws can be meaningful only if those who are entrusted with the job of doing justice are sensitised towards women’s problems. 29. In the ultimate analysis we are of the opinion that the appellant has not been able to rebut the presumption under Section 113-A of the Evidence Act. Girija committed suicide within seven years from the date of her marriage in her matrimonial home. Impact of this circumstance was clearly missed by the trial court. The evidence on record establishes that Girija was subjected to mental and physical cruelty by the appellant in their matrimonial home which drove her to commit suicide. The appellant is guilty of abetment of suicide. The High Court has rightly reversed the judgment of the trial court acquitting the appellant. The appeal is, therefore, dismissed.” Unnatural Death: 6. It is the case of prosecution that the deceased Harshaben and Sonalben have died by pouring kerosene on themselves and therefore both of them have died an unnatural death by committing suicide because of physical and mental harassment by the Appellants/Original Accused. 6.1 The prosecution has examined PW-8 Dr. Hinaben Pravinchandra at Exh.25 who has conducted the postmortem on the dead body of both the deceased persons i.e. Harshaben and Sonalben. 6.1 The prosecution has examined PW-8 Dr. Hinaben Pravinchandra at Exh.25 who has conducted the postmortem on the dead body of both the deceased persons i.e. Harshaben and Sonalben. It is stated in her deposition that on 2.5.2001 when she was on duty from 8 O’ Clock, at about 10:30 PM dead bodies were sent with marnotar form along with copy of the inquest panchnama. She conducted the postmortem along with the panel Doctor P.G. Malani. She has conducted the postmortem of Sonalben at 10:35 pm on 2.5.2001 and completed the postmortem at 11:40 pm. She has narrated internal as well as external injury on the dead body of Sonalben in her deposition. It is stated that the dead body was naked with torn clothes over it. Rigor Mortis developed. P.M. Lividity not seen. Superficial to deep burn all over the body except sole was seen. Both upper and lower limbs were semi flexed. On internal examination of the dead body, it is found that diaphragmed are congested, lungs are pale and burnt carbon particles are seen, part of tongue just outside mouth, diaphragm, lungs, esophagus, right and left lungs were congested, heart, esophagus stomach, small intestine and large intestine, stomach, kidney were pale. In her opinion cause of death is due to neurogenic shock as a result of intensive burns. 6.2 The postmortem report was prepared and signed by both the panel Doctors and that the signatures of both the Doctors and her handwriting are identified by her and P.M. Note is at Exh.26. 6.3 The Doctor has also conducted postmortem on the dead body of deceased Harshaben. The P.M. started on 2.5.2001 at 11:50 PM and was completed on 3.5.2001 at 12:50 am. That the dead body was naked with some torn clothes over it. Rigor Mortis developed. P.M. lividity not seen. Superficial to deep burns over scalp, face, neck, both upper limbs, front of the chest abdomen, whole back both buttocks, vulva, both lower limbs except soles. On internal examination burns at frontal region were found. Lungs, Oesophagus, congested. Heart, stomach, intestines, liver, gallbladder, kidneys are pale. According to her opinion the cause of death is due to Neurogenic shock as a result of extensive burns. P.M. report is produced at Exh.27. The signature and the contents of the P.M. Report are proved. This witness is cross-examined by the defence Advocate. Nothing adverse revealed from cross-examination. Lungs, Oesophagus, congested. Heart, stomach, intestines, liver, gallbladder, kidneys are pale. According to her opinion the cause of death is due to Neurogenic shock as a result of extensive burns. P.M. report is produced at Exh.27. The signature and the contents of the P.M. Report are proved. This witness is cross-examined by the defence Advocate. Nothing adverse revealed from cross-examination. 6.4 The prosecution has produced inquest panchnama of deceased Harshaben at Exh.22 as well as the inquest panchnama of deceased Sonalben at Exh.23. Both the inquest panchnamas are admitted by the defence. The endorsement to that effect is made at Exh.4 i.e. in the documentary evidence list. In view of Section 294 of the Criminal Procedure Code, the genuineness of the documents are not disputed, therefore the learned trial court has exhibited these documents and taken on record. 6.5 Considering the oral as well as documentary medical evidence, it is established that deceased Harshaben and Sonalben died unnatural death by committing suicide. 7. This court has to come to conclusion as to whether the Appellants/Accused persons are liable for the offence or not. For that purpose the following prosecution witnesses as well as evidences are discussed hereunder: Written Dying Declaration recorded by Executive Magistrate: 8. Liability of Accused In criminal jurisprudence the prosecution has to prove its case by leading legal, relevant, cogent and reliable evidence. At the time of recording evidence, it may be depicted as oral evidence (Direct and indirect), documentary evidence(primary and secondary), real evidence (muddamal/thing). At the time of appreciation of evidence, the evidence on record may be depicted as substantive evidence, circumstantial evidence, corroborative evidence etc. Now what is substantive evidence ? The evidence by which main fact in issued is decided, it can be named as substantive piece of evidence. Whether the particular evidence is substantive evidence or not that is required to be decided, considering the nature, effect and impact of evidence on the case on hand. The example of the substantive evidence are the dying declaration, evidence of injured witness, evidence of eye witness and evidence of prosecutrix etc. 9. In this case the substantive piece of evidence in form of dying declaration is produced by the prosecution. There are multiple dying declarations are produced in this case. In catena of the judgments, the Apex Court has held that the dying declarations is a substantive piece of evidence. 9. In this case the substantive piece of evidence in form of dying declaration is produced by the prosecution. There are multiple dying declarations are produced in this case. In catena of the judgments, the Apex Court has held that the dying declarations is a substantive piece of evidence. There is no coroboration required if dying declaration is reliable and trustworthy, conviction can be held on sole dying declaration. 10. The prosecution has examined PW-9 Bhikhubhai Kanjibhai Vikani – Executive Magistrate at Exh.28 who has recorded the dying declaration of Harshaben. In his deposition he has stated that on 2.5.2001 he was present at Mamlatdar’s office, Amreli. He received yadi from the City Police Station, Amreli that Harshaben is admitted in Civil Hospital because of extensive burn injuries and he was requested to record her dying declaration. As soon as he received yadi at 19:10 hours he went to the hospital on his vehicle at 19:13 hours. There he met Medical Officer and he was taken to burns ward. After examining the patient, the Doctor has endorsed and certified that the patient is in conscious state of mind and able to answer. Thereafter, he started recording dying declaration of Harshaben at 19:15 hours. He asked her name to which she replied Harshaben Pravinbhai Parmar. He asked her age to which she stated 27 years and for resident she replied; resident of Amrutnagar, Amreli. He further asked her, “where is she?”, to which she replied, “she is admitted in Civil Hospital, Amreli”. Thereafter he recorded the statements as narrated by Harshaben. Recording of DD was completed at 19:25 hours. He took left thumb impression of Harshaben and identified by him. He identified his signature on the DD and also identified Doctor’s signature and the thumb impression of Harshaben and his handwriting etc. The same is proved and exhibited at Exh.30. 10.1 This witness is cross-examined at length by the learned Advocate for the Defence as regards to mode, method, procedure, mental condition and ability of patient for recording of DD. Nothing revealed adverse to the prosecution. The suggestion made by the defence Advocate are denied. During cross-examination he has clarified some of the facts are necessary for recording of DD. 10.2 The prosecution has produced the Dying Declaration at Ex.30. This DD is recorded by the Executive Magistrate and it is proved in his deposition at Exh.28. Nothing revealed adverse to the prosecution. The suggestion made by the defence Advocate are denied. During cross-examination he has clarified some of the facts are necessary for recording of DD. 10.2 The prosecution has produced the Dying Declaration at Ex.30. This DD is recorded by the Executive Magistrate and it is proved in his deposition at Exh.28. On perusing the DD, it is in question and answer form. The Question No.6 i.e. what happened to you?, Hansaben replied that she is ablaze. The Question No.7 is; How it is happened? The patient replied that she is residing with her family. She and her younger sister, who is married with his brother-in-law, Appellant No.1 were ablaze due to altercation happened with her mother-in-law Appellant No.2. 10.3 Therefore, considering the whole deposition and the DD, it appears that the prosecution has proved the DD according to law and the DD is reliable and trustworthy. 11. Learned APP has cited the judgment reported in AIR 2019 Supreme Court 4321, delivered in case of Jagbir Singh vs. State (N.C.T. of Delhi), Hon’ble Apex Court has held as under: “Para 19. But when a declaration is made, either oral or in writing, by a person whose death is imminent, the principle attributed to Mathew Arnold that truth sits upon the lips of a dying man and no man will go to meet his maker with falsehood in his mouth will come into play. The principles relating to dying declaration are no longer res integra and it would be apposite that we refer to the decision of this Court in Paniben (Smt) v. State of Gujarat, (1992) 2 SCC 474 , wherein the concepts are summed up as follows: “(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M.P. [ (1976) 3 SCC 104 : 1976 SCC (Cri) 376 : (1976) 2 SCR 764 ] ) 2 (1992) 2 SCC 474 : ( AIR 1976 SC 2199 ) (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (Munnu Raja v. State of M.P. [ (1976) 3 SCC 104 : 1976 SCC (Cri) 376 : (1976) 2 SCR 764 ] ) 2 (1992) 2 SCC 474 : ( AIR 1976 SC 2199 ) (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav [ (1985) 1 SCC 552 : 1985 SCC (Cri) 127 : AIR 1985 SC 416 ] ; Ramawati Devi v. State of Bihar [ (1983) 1 SCC 211 : 1983 SCC (Cri) 169 : AIR 1983 SC 164 ] ). (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor [ (1976) 3 SCC 618 : 1976 SCC (Cri) 473 : AIR 1976 SC 1994 ] ). (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P. [ (1974) 4 SCC 264 : 1974 SCC (Cri) 426] )( AIR 1974 SC 332 ) (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P. [1981 Supp SCC 25 : 1981 SCC (Cri) 645 : AIR 1982 SC 1021 ] (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P. [ (1981) 2 SCC 654 : 1981 SCC (Cri) 581]) (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC 455 : 1981 SCC (Cri) 364 : AIR 1981 SC 617 ]) (viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. Surajdeo Oza v. State of Bihar[1980 Supp SCC 769 : 1979 SCC (Cri) 519 : AIR 1979 SC 1505 ] ) (ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. On the contrary, the shortness of the statement itself guarantees truth. Surajdeo Oza v. State of Bihar[1980 Supp SCC 769 : 1979 SCC (Cri) 519 : AIR 1979 SC 1505 ] ) (ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State of M.P. [1988 Supp SCC 152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912 ]) (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan [ (1989) 3 SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519 ]) Also, in paragraph 19, it was held as follows: “19. In the light of the above principles, we will consider the three dying declarations in the instant case and we will ascertain the truth with reference to all dying declarations made by the deceased Bai Kanta. This Court in Mohanlal Gangaram Gehani v. State of Maharashtra [ (1982) 1 SCC 700 : 1982 SCC (Cri) 334 : AIR 1982 SC 839 ] held: “where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred.” “Of course, if the plurality of dying declarations could be held to be trust worthy and reliable, they have to be accepted.” The problem of multiple dying declarations has engaged the attention of this Court. Para 20. In Kundula Bala Subrahmanyam and another v. State of Andhra Pradesh, (1993) 2 SCC 684 this Court held as follows: “18. Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not credit worthy. Para 20. In Kundula Bala Subrahmanyam and another v. State of Andhra Pradesh, (1993) 2 SCC 684 this Court held as follows: “18. Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not credit worthy. Under Section 32, when a statement is made by a person, as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of that person's death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. If there are more than one dying declarations then the court has also to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same (Emphasis supplied) Para 23. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same (Emphasis supplied) Para 23. In Amol Singh v. State of M.P., (2008) 5 SCC 468 the High Court rejected the plea on the basis that there being more than one dying declaration and on the basis that the extent of difference between the two declarations was insignificant: “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 are more than one dying declaration they should be consistent. (See Kundula Bala Subrahmanyam v. State of A.P. [ (1993) 2 SCC 684 : 1993 SCC (Cri) 655] ) 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.” Para 30. A survey of the decisions would show that the principles can be culled out as follows: (a). Conviction of a person can be made solely on the basis of a dying declaration which inspires confidence of the court; (b). If there is nothing suspicious about the declaration, no corroboration may be necessary; (c). No doubt, the court must be satisfied that there is no tutoring or prompting; (d). The court must also analyse and come to the conclusion that imagination of the deceased was not at play in making the declaration. In this regard, the court must look to the entirety of the language of the dying declaration; (e). Considering material before it, both in the form of oral and documentary evidence, the court must be satisfied that the version is compatible with the reality and the truth as can be gleaned from the facts established; (f). In this regard, the court must look to the entirety of the language of the dying declaration; (e). Considering material before it, both in the form of oral and documentary evidence, the court must be satisfied that the version is compatible with the reality and the truth as can be gleaned from the facts established; (f). However, there may be cases where there are more than one dying declaration. If there are more than one dying declaration, the dying declarations may entirely agree with one another. There may be dying declarations where inconsistencies between the declarations emerge. The extent of the inconsistencies would then have to be considered by the court. The inconsistencies may turn out to be reconciliable. (g). In such cases, where the inconsistencies go to some matter of detail or description but is incriminatory in nature as far as the accused is concerned, the court would look to the material on record to conclude as to which dying declaration is to be relied on unless it be shown that they are unreliable; (h). The third category of cases is that where there are more than one dying declaration and inconsistencies between the declarations are absolute and the dying declarations are irreconcilable being repugnant to one another. In a dying declaration, the accused may not be blamed at all and the cause of death may be placed at the doorstep of an unfortunate accident. This may be followed up by another dying declaration which is diametrically opposed to the first dying declaration. In fact, in that scenario, it may not be a question of an inconsistent dying declaration but a dying declaration which is completely opposed to the dying declaration which is given earlier. There may be more than two. In the third scenario, what is the duty of the court? Should the court, without looking into anything else, conclude that in view of complete inconsistency, the second or the third dying declaration which is relied on by the prosecution is demolished by the earlier dying declaration or dying declarations or is it the duty of the court to carefully attend to not only the dying declarations but examine the rest of the materials in the form of evidence placed before the court and still conclude that the incriminatory dying declaration is capable of being relied upon? Our Conclusion on multiple Dying Declaration Para 31. Our Conclusion on multiple Dying Declaration Para 31. We would think that on a conspectus of the law as laid down by this court, when there are more than one dying declaration, and in the earlier dying declaration, the accused is not sought to be roped in but in the later dying declaration, a summersault is made by the deceased, the case must be decided on the facts of each case. The court will not be relived of its duty to carefully examine the entirety of materials as also the circumstances surrounding the making of the different dying declarations. If the court finds that the incriminatory dying declaration brings out the truthful position particularly in conjunction with the capacity of the deceased to make such declaration, the voluntariness with which it was made which involves, no doubt, ruling out tutoring and prompting and also the other evidence which support the contents of the incriminatory dying declaration, it can be acted upon. Equally, the circumstances which render the earlier dying declaration, worthy or unworthy of acceptance, can be considered.” 12. The prosecution has examined PW-11 Dr. Bhimjibhai Laljibhai, Medical Officer at Exh.49 who has treated deceased Harshaben. It is stated in his deposition that on 2.5.2001 he was working as Medical Officer in Civil Hospital, Amreli. That Mamlatdar came there for recording the DD of Harshaben. He has gone to the burns ward with Mamlatdar and examined deceased Harshaben. At that time she was completely conscious and was replying correctly and behaving well. He was with Mamlatdar till the recording of DD was over. Thereafter completing DD, he signed on the DD. He identified his endorsement and signatures on the DD. 12.1 This witness is cross-examined by the defence Advocate. The suggestion made by the defenece Advocate to favour the Accused are denied by this witness and he stick to the contents of the chief-examination. Oral Dying Declaration: 13. The prosecution has examined PW-1 Arunaben Dharamsinhbhai, mother of the deceased Harsha and Sonal at Exh.10. In her deposition at page 3 she has stated that she came to know from her daughter Jyotiben. She rushed to Civil Hospital at Amreli where Harshaben was admitted. She met her daughter Harshaben. She asked what happened?. Harshaben replied that due to the tormentation of A-2 Mother-in-Law she and Sonal set ablazle. In her deposition at page 3 she has stated that she came to know from her daughter Jyotiben. She rushed to Civil Hospital at Amreli where Harshaben was admitted. She met her daughter Harshaben. She asked what happened?. Harshaben replied that due to the tormentation of A-2 Mother-in-Law she and Sonal set ablazle. That due to harassment by A-1 Bipinbhai Manubhai Parmar and A-2 Kasturben, she and her sister Sonal set ablaze. It is further stated that her husband Pravinbhai and Sonalben were harassed by the Appellants, therefore they set ablaze. The complainant has narrated the incident as regards to harassment meted out to her daughters by both the Accused persons. 13.1 This witness is cross-examined on the point of oral DD by the defence Advocate. The suggestions made by the learned Advocate for the defence are denied. Nothing adverse is revealed to the questions. 14. The prosecution has examined PW-5 Manjulaben Natwarlal at Exh.17. This witness accompanied with the complainant. She has stated that she went to the hospital with Arunaben and met Harshaben. At that time Arunaben asked Harshaben about the incident in her presence. She has further deposed that Harshaben has stated that my brother-in-law (devar) Accused No.1 and Kasturben – Mother-in-law Accused No.2 were harassing and therefore she and Sonal have taken this step. It is further stated that the name of her brother-in-law is Bipin. She identified the accused before the court. She has been cross-examined by the defence Advocate. In paragraph 8 she has clarified the time and place of the hospital. Further she has denied the suggestions of the learned Advocate for defence in paragraph 11. Cruelty soon before death to two deceased Harshaben and Sonalben: 15. The prosecution has examined PW-3, Jyotiben Rameshbhai Vaghela, sister of Sonalben and Harshaben at Exh.13. This witness has stated in her deposition that on 2.5.2001 her younger brother-in- law i.e. A-1 Bipinbhai came to her house and she was taken to his house at Amrutnagar. At that time, her sisters Harshaben and Sonalben, their mother-in-law Kasturben and father-in-law Manubhai and one guest as Jyotiben were present. That A-2 Kasturben – mother-in-law told Sonalben to prepare tea. Thereafter A-2 and A-1 have some altercation with Sonalben and they have beaten Sonalben. At that time, her elder sister Harshaben intervened. Therefore A-1 – Bipinbhai and A-2 Kasturben have abused her. That A-2 Kasturben – mother-in-law told Sonalben to prepare tea. Thereafter A-2 and A-1 have some altercation with Sonalben and they have beaten Sonalben. At that time, her elder sister Harshaben intervened. Therefore A-1 – Bipinbhai and A-2 Kasturben have abused her. Thereafter her sisters Harshaben and Sonalben went to the room and they have closed the door and said from inside that we both are going to die. At that time Accused No.2 – Mother-inlaw told that you both die, my sons will not remain celibate. After some time, smoke came out of the room. Therefore she went to one darbar, who was residing nearby, for calling her mother. Her elder brother-in-law had taken her elder sister Hansaben to the Hospital. It is further stated that her sister Sonalben was in the kitchen where she was wriggling with severe burn injuries over her body. At that time her mother and witness Dilavarbhai and Manjulaben came there. At that time her brother-in-law (Accused No.1) was sleeping in the room. It is also stated that her both sisters are burn to death due to harassment of Accused No.1 Bipinbhai and A-2 Kasturben. Her both sister had suicide due to irksome of Accused. This witness is cross examined by the defence Advocate as regards to the cruelty meted to her sisters. She was explained the situation at the time of the incident. She has denied the case put forward by learned Advocate for the defence. Nothing adverse revealed from the cross-examination which can damage the case of the prosecution. Cruelty and Conduct of the Appellants/Accused: 16. PW-1 Arunaben at Exh.10 stated in her deposition in paragraph 2 that A-1 and A-2 are harassing and quarreling with her daughters Harshaben and Sonalben. They were quarreling for household work after the marriage of Sonalben. It was not liked by A-1 Bipinbhai that both the sisters are residing together. It is also stated that A-1 and A-2 had asked both the sisters Sonalben and Harshaben to bring some articles from matrimonial home. It is also stated that if they deny to bring the articles as demanded, at that time A-1 and A-2 were quarreling. She has further narrated two other incidents of cruelty. Further she has stated that she has filed FIR before Amreli Taluka Police Station. During deposition FIR was shown to her. She has identified her signature. It is also stated that if they deny to bring the articles as demanded, at that time A-1 and A-2 were quarreling. She has further narrated two other incidents of cruelty. Further she has stated that she has filed FIR before Amreli Taluka Police Station. During deposition FIR was shown to her. She has identified her signature. 16.2 The complainant Arunaben has further stated at para 3 of her deposition at Exh.10 that her daughter Jyotiben has informed about incident on telephone that Harshaben and Sonalben have been burnt by pouring kerosene on themselves. She went to Amrutnagar in Rickshaw with Dilawarbhai and Manjulaben. At that time Kasturben A-2, Bipinbhai A-1 and her maternal uncle’s daughter were present. Her daughter Sonalben was wriggling with extensive burns. She has asked her daughter Sonal that where is Harsha? She could not reply. She has been cross-examined by the learned Advocate for the defence on the ground of cruelty. Nothing has found adverse from the cross-examination which may damage the prosecution case. But she has explained certain things which are stated in the chief examination. 17. It is an admitted fact that at the time of incident both the Accused persons were present in the house i.e. the place of incident. The prosecution has examined PW 4 Delavahusen Mullaismailji at Exh.15. He is an independent witness. He came with complaint to help her. He went to the place of incidence with the complainant and Manjulaben. It is stated in his deposition that when they reached the place of incidence i.e. at the house of the Accused persons, some persons gathered there. Accused No.2 was swinging on the swing and Accused No.1 was sleeping on the cot. He saw that Sonalben was in burning position laying in kitchen. She was wriggling with extensive burn injuries over her body. He asked Accused No.2 that where is Harshaben to which she replied that Harsha is taken to the hospital by his husband. Thereafter A-2 was asked by him that where is Accused No.1 Bipin – husband of Sonal, she replied that he is sleeping inside the room. He went into the room and saw that Bipin was sleeping on the cot. He was awaken by him and had been told that your wife is in critical position and wriggling with extensive burn injuries. Is it not your duty to admit her to hospital? He went into the room and saw that Bipin was sleeping on the cot. He was awaken by him and had been told that your wife is in critical position and wriggling with extensive burn injuries. Is it not your duty to admit her to hospital? At that time A-1 Bipin replied that I don’t care and went outside the house and sat there. 17.1 It is further stated that Harshaben came to his shop with her husband Pravinbhai before 15 days from incident and told in presence of Pravinbhai that her mother-in-law A-2 and Bipinbhai A-1 were harassing lot. This witness is cross-examined by the defence Advocate but nothing revealed against the prosecution case. 18. The prosecution has examined PW-5 Manjuben Natvarlal at Exh.17. This witness in her deposition has stated that she went to the house of the Accused with Arunaben and Dilawarbhai. At that time she saw that Sonalben was wriggling with extensive burn injuries over her body. She also stated that Accused No.2 - Kasturben, the mother-in-law of Sonalben was swinging on the swing and A-1 Bipinbhai was sleeping inside the room. She asked A-2 Kasturben about Harsha but she didn’t reply. She again asked A-2 Kasturben as to what has happened. At that time she replied that both the sisters were burnt. Thereafter she went to the hospital with Arunaben. This witness is cross-examined by the defence Advocate. She has denied the suggestions made by the learned Advocate for the defence. 19. Considering the evidence of PW-4 Delavahusen Mullaismailji at Exh.15 and the evidence of PW-5 Manjuben Natvarlal at Exh.17, it is seen that the conduct of the Appellants/Original Accused persons is not befitting human nature/character and they have committed such a barbaric act. It is the duty of the Accused persons to take Sonalben to hospital as she was seriously injured by burn. 20. Learned Advocate for the appellant has argued that no independent witness is examined. In this case, the neighbourer PW4 and PW-5 are examined at Exh. 15 and Exh.17 respectively. This argument is not tenable in eye of law. It is the duty of the Accused persons to take Sonalben to hospital as she was seriously injured by burn. 20. Learned Advocate for the appellant has argued that no independent witness is examined. In this case, the neighbourer PW4 and PW-5 are examined at Exh. 15 and Exh.17 respectively. This argument is not tenable in eye of law. 20.1 This Court has come across the judgment reported in 2000(2) SCC 646 , the judgment delivered in Ambika Prasad vs. State (Delhi Administration), the Hon’ble Supreme Court held as under: “Para 12: It is next contended that despite the fact that 20 to 25 persons collected at the spot at the time of incident as deposed by the prosecution witnesses, not a single independent witness has been examined and, therefore, no reliance should be placed on the evidence of P.W. 5 and P.W. 7. This submission also deserves to be rejected. It is known fact that independent persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. First, in cases where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose truth before the Court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Other reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the Court. In any case, if independent persons are not willing to co-operate with the investigation, prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured witnesses. Dealing with similar contention in State of U.P. v. Anil Singh, ( AIR 1988 SC 1998 : 1989 Cri LJ 88) (supra) this Court observed (para 13):- “.... In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It, is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable.” 21. It, is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable.” 21. The prosecution has produced the panchnama of scene of offence at Exh.20. The prosecution has examined PW-6 Dhirubhai Mohanbhai at Exh.19 and PW-7 Maganbhai Govindbhai at Exh.21. Both these witnesses are the panch witnesses of the scene of offence. Both the witnesses have categorically stated about the contents of the panchnama and the panchnama is proved according to law. 22. In view of the evidence discussed as above, I find that: (a) There is one written dying declaration recorded by the Executive Magistrate and two oral dying declarations before the mother and before the independent witness. (b) All three dying declarations are not contradictory but concurrently satisfy the statement is made by Harshaben as to the cause of her death. (c) Dying declaration are made by Harshaben under expectation of her death. There is no defect or procedural infirmities found in recording of dying declaration, therefore, the dying declarations are reliable and trustworthy. (d) All the dying declarations shows circumstances of the transaction which resulted in death of Harshaben and Sonalben involves not only action and inaction on part of the Appellant husband but active role of the Appellants Accused. (e) There is sufficient evidence of cruelty which amounts abetment on part of the Appellant Accused for commission of suicide by Harshaben and Sonalben. The illegal demand of property or valuable security is demanded by the Appellant Accused. (f) The Appellant No.1 as husband of deceased Sonalben and brother-in-law of Harshaben and Appellant No.2 Kasturben being mother-in-law of both deceased subjected both the deceased to cruelty in such a nature as is likely to drive the deceased women to commit suicide. (g) Upon perusing the documentary as well as oral evidence produced on record, the prosecution has established that Accused No.1 being the husband of deceased Sonalben and Accused No.2 being the relative of the husband, i.e. mother-in-law of the deceased subjected cruelty to both the deceased Sonalben and Harshaben to cruelty. (h) It is also established that the conduct of both the Appellants Accused persons is willful. (h) It is also established that the conduct of both the Appellants Accused persons is willful. It is of such a nature that both the deceased have driven to commit suicide and both the Accused persons have harassed the deceased Harshaben and Sonalben. Thus, the prosecution has established the ingredients of the offence punishable under Section 498(A) IPC. (i) It is further established by the prosecution that both the deceased have committed suicide and for that purpose both the Accused persons have abetted the commission of such suicide and established the ingredients of the offence punishable under Section 306 IPC. 23. In view of the above discussions and the facts and circumstances of the case, I am of the view that the prosecution has established its case and prove the charges levelled against the Appellants/Original Accused persons for the offence punishable under Section 306 IPC and 498(A) IPC and I find that the conviction held by the learned trial court is legal, just and proper. Hence, the Appeal fails and deserve to be dismissed. I, accordingly pass the following final order: FINAL ORDER (i) For the reasons recorded herein above the present Appeal is dismissed. (ii) The judgment and order convicting the Appellant Accused for the offence under Section 498(A) and 306 read with Section 114 of IPC by the learned Sessions Judge Amreli dated 30.9.2004 in Sessions Case No. 9 of 2002 is confirmed. (iii) The Appellants/Original Accused Nos. 1 and 2 are directed to surrender within 45 days from the date of this judgment. (iv) The learned trial court is directed to proceed with execution of sentence. (v) The Registry is directed to send copy of this judgment to the concerned court for certification under Section 388 of the Code. (vi) R&P be sent back to the trial court forthwith.