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2023 DIGILAW 1060 (GUJ)

State Of Gujarat v. Turi Vinodbhai Dhudabhai

2023-09-05

A.Y.KOGJE, MAUNA M.BHATT

body2023
JUDGMENT : A.Y. KOGJE, J. 1. The present appeal is preferred by the State against the judgment and order dated 29.09.1997 passed by the Additional Sessions Judge, Palanpur in Sessions Case No.115 of 1988. By the impugned judgment and order, the accused nos.1 to 4 have been acquitted of the charge under Section 302 read with Section 34 of the Indian Penal Code and were declared to be innocent. 2. The appeal came to be admitted while granting leave by this Court under order dated 13.07.1988 and thereafter, it is reported that the respondent nos.3 and 4 – Puri Manekben and Chunilal have expired and qua the said two respondents, the appeal has abated. The present appeal is therefore taken up for hearing in connection with the respondent nos.1 and 2, who are represented by learned advocate Mr.Maharshi Patel. 3. It is the case arising out of an incident by which the informant herself namely Manjuben, who is wife of Vinodbhai Judabhai resident of Magarvada was set on fire on 15.01.1988. According to the first informant, it was the accused persons who had sprinkled kerosene on her and set her ablaze. In this connection, an F.I.R. came to be registered with Palanpur City Police Station and upon investigation, four accused persons were charge sheeted. 4. Learned APP submitted that the case of the prosecution was on the basis of the dying declaration, which was recorded by the Mamlatdar. It is submitted that before recording the dying declaration, necessary procedures were followed and only thereafter, the dying declaration was recorded after ascertaining the conscious state of mind and ability of Manjuben to record her dying declaration. Learned APP has drawn attention of this Court to Exh.32 being the deposition of PW-7– Shivlal Kanaiyalal Chauhan, who was the Deputy Mamlatdar at Palanpur, who was summoned for recording the dying declaration. It is submitted that the dying declaration at Exh.35 is consistent and clearly gives out the role of the accused persons, particularly accused nos.1 and 2 and also the reason behind sprinkling of kerosene and setting her on fire. 4.1 Learned APP has thereafter relied upon the Exh.37, which is the complaint given by the deceased herself at the relevant time, which was recorded by the Investigating Officer with the aid of his writer. 4.1 Learned APP has thereafter relied upon the Exh.37, which is the complaint given by the deceased herself at the relevant time, which was recorded by the Investigating Officer with the aid of his writer. Learned APP drew attention of this Court to the Exh.36 – deposition of PW-8 – Investigating Officer and submitted that through this witness Exh.37 was exhibited, wherein again the deceased had given clear version and the manner in which the incident has taken place and role played by the respondent nos.1 and 2. Learned APP has, therefore, submitted that in view of the dying declaration at Exh.35, which is recorded by the Deputy Mamlatdar and independent witness and the same is being consistent with the version coming out in Exh.37, the Sessions Court ought to have relied upon this evidence to be sufficient evidence, particularly, the same being the dying declaration to which due weightage is required to be given in view of Section 32 of the Indian Evidence Act. 4.2 Learned APP has drawn attention of this Court to the postmortem report at Exh.30 and submitted that the injuries which are described in column 17 are such injuries sustained on account of the incident of setting the deceased on fire and therefore, the cause of death is also attributed to the shock due to burn on body. 4.3 Learned APP has submitted that the oral evidence as well as the medical evidence are consistent with each other and there is no reason to discard such consistent evidence to record an acquittal of the respondents. Learned APP has thereafter assailed the order on the ground that an error is committed by the learned Sessions Judge in relying upon the version of the deceased, which is given in the history given to the Medical Officer when the deceased was brought to the hospital. It is submitted that when there was a version in the history given to the doctor and a consistent version before two independent witnesses, the Sessions Court out to have given due weightage to the dying declarations recorded. It is submitted that when there was a version in the history given to the doctor and a consistent version before two independent witnesses, the Sessions Court out to have given due weightage to the dying declarations recorded. 4.4 Learned APP has by referring to the evidence of the Deputy Mamlatdar, who has recorded the dying declaration submitted in the examination-in-chief that it has come on record that this witness before recording of the dying declaration had ascertained from the doctor the deposing capacity of Manjuben and when the dying declaration was recorded at 1:30 pm, Manjuben was in conscious state of mind to record the dying declaration. The deposing capacity of Manjuben has been certified by the doctor by his remarks made on Exh.34. 4.5 Learned APP has once again referred to the evidence of the Investigating Officer at Exh.36 and submitted that even when the complaint at Exh.37 was recorded, this witness had ascertained the deposing capacity of Manjuben and thereafter, recorded the complaint. She has drawn attention of this Court also to the evidence of the Medical Officer PW-6 at Exh.26 to submit that the overall appreciation of evidence of Medical Officer would also indicate that for the period between 1:30 pm to 5:30 pm, this witness was not reported about any instability in the health condition of Manjuben and therefore, her deposing capacity was very much there when her dying declaration as well as the complaint was recorded at the different point of time i.e. 1 :30 pm and 3 : 45 pm. 5. As against this, learned advocate appearing for the respondent nos.1 and 2 has immediately drawn attention of this Court to the evidence of PW -6 at Exh.26 of the Medical Officer – Shamaldas Mohanlal and submitted that this witness is an independent witness and was the first person to examine medically Manjuben when she was brought with burn injuries. It is submitted that the history recorded by this witness would clearly indicate that it was an accidental incident by which the lid of prymus was blown out as a result of which there was a blast by which the clothes of Manjuben caught fire and she received burn injuries. He has drawn attention of this Court to the medical history recorded, which is exhibited at Exh.21, in which the history given by Manjuben is recorded and is exhibited vide Exh.21. He has drawn attention of this Court to the medical history recorded, which is exhibited at Exh.21, in which the history given by Manjuben is recorded and is exhibited vide Exh.21. It is submitted that when the version which has come at the first point of time should be given priority over the subsequent version, which had the scope of being tempered with. This submission is made particularly in view of the evidence given by the father of the deceased as well as other relatives of the deceased. He has drawn attention of this Court to the evidence of PW-1 at Exh.13 Kasturbhai, who is the father of the deceased. In his deposition, he has indicated that when they reached to the hospital to attend his daughter Manjula, at that time, Manjula had conveyed him that while she was cooking, the lid of prymus came out as a result of which, there was a blast and her clothes caught fire and as a result of which, she received burn injuries. 5.1 Learned advocate has pointed out that this very witness has deposed that in view of the anxious situation prevailing, and heat of passion they had asked Manjula to give her dying declaration and complain in a particular fashion so as to involve the family members i.e. the respondents. And therefore, the dying declaration will lose its credibility despite being attracted by Section 32 of the Indian Evidence Act. Learned advocate has relied upon the decision of the Apex Court in the case of Kamla Vs. State of Punjab and Haryana reported in 1993 (1) SCC 1 and submitted that in an identical facts and situation, when there were more than one dying declarations, the accused persons were acquitted on the ground that the dying declarations inter-say were inconsistent. Learned advocate has therefore submitted that in the present case also, there are three different occasions on which the deceased had a chance to make her dying declarations, first before the Doctor, second before the Mamlatdar and third before the Police Inspector. Learned advocate has therefore submitted that in the present case also, there are three different occasions on which the deceased had a chance to make her dying declarations, first before the Doctor, second before the Mamlatdar and third before the Police Inspector. It is submitted that not only the version of the deceased is inconsistent inter-say, but even within the two dying declarations before the Mamlatdar and the Police Inspector, her version is inconsistent considering the facts narrated therein and therefore also, the dying declarations cannot be treated to be of such nature that the conviction could be based upon and therefore, the Sessions Court has rightly acquitted the respondents. Learned advocate has strongly relied upon the evidence of the father of the deceased as well as other relatives of the deceased, who have consistently deposed that when they reached the hospital, the deceased had herself conveyed the manner in which the accident took place and therefore, no role is attributed by these witnesses to the respondents. 6. Having heard the learned advocates for the parties and having perused the documents on record, the offence pertains to an incident which took place on 15.01.1988 when the deceased Manjuben had given the complaint regarding her being set on fire on account of the altercation within the family for finding out some papers and when she replied that she was not knowing about the papers at that time, kerosene was sprinkled on her and she was set on fire. Pursuant to such information being disclosed, an F.I.R. came to be registered with Palanpur City Police Station and upon investigation, charge-sheet came to be filed. The Session Court in the impugned order has observed that all the necessary formalities and procedures were complied with before commencement of the trial. 7. Vide Exh.7, charge came to be framed on the ground that the accused nos.1 husband of the deceased was having illicit relation with the respondent no.2, who is her sister-in-law and as the deceased was an obstruction to their illicit relationship and as the accused respondents suspected that the deceased has hidden some papers, they had, with an intention to commit murder, sprinkled kerosene on the deceased and set her ablaze because of which she was shifted to Palanpur Civil Hospital, where she succumbed to burn injuries. In that connection, the charge was framed against the respondents for the offences under Section 302 read with Section 34 of the Indian Penal Code. 8. Pursuant to the incident of 15.01.1988, whereby deceased – Manjulaben sustained burn injuries, she was immediately removed to the Civil Hospital at Palanpur, where she was examined by the Medical Officer- Dr. Shyamal Mohanlal – Medical Officer has been examined as PW – 6 vide Exh.26, in his deposition he has deposed that under a letter of PSO City Police Station, Palanpur at 11:45 Manjulaben was brought to the hospital having sustained burn injuries, at that time she has given history that while she had cooking on kerosene prymus lid blew off and kerosene came out resulting into blast. The clothes worn by her caught fire and she received the burn injuries. At this stage it would be appropriate to refer to Exh.21, which is the medical certificate regarding the history given by Manjulaben to this witness. Perusal of this Exh.21 does indicate that the nature of injuries sustained also in vernacular. The history being given indicating the same chronology of events as deposed by this witness. 9. In the opinion of this Court the first in point of time dying declaration was made by the deceased – Manjulaben, when she was brought to the hospital after having sustained the burn injuries. 10. PW-6 has categorically mentioned about the history given by the patient herself and in the cross examination also, he has sustained the facts deposed by him in the evidence in chief. 11. This Court also taken into consideration a relevant aspect which is deposed by this witness in his evidence in chief to the extent that while observing and recording the status of dead body that burn injuries he did not find any traces or odour of the kerosene from the body. This fact particularly assume importance taking into consideration inquest panchnama, which is exhibited at Exh.18. 12. The perusal of inquest panchnama also indicates that the extent of burn injuries sustained by deceased – Manjulaben. However, the inquest panchnama does not indicate that there was any smell of kerosene coming out of body of the deceased. This fact particularly assume importance taking into consideration inquest panchnama, which is exhibited at Exh.18. 12. The perusal of inquest panchnama also indicates that the extent of burn injuries sustained by deceased – Manjulaben. However, the inquest panchnama does not indicate that there was any smell of kerosene coming out of body of the deceased. This important aspect rules out the possibility of sprinkling of kerosene on the body of the deceased and there after setting her on fire, had it been so the traces / odour would have been found either in inquest panchnama with the Medical Officer, who immediately examined the patient or performed the post mortem. 13. Exh.1 is the list of muddamal articles, which were found from the scene during the course of investigation. At Exh.1 at serial No.3 is the reference made to pieces of cloth of various colors, purportedly worn by the deceased at the time of incident. The Court does not find any thing on record in the form of FSL report, so as to suggest any presence of “hydro carbon” or any traces to kerosene on the pieces of cloth, thereby revoking out sprinkling of kerosene as per the charge. In the opinion of the Court wherever there is sprinkling of kerosene the traces of “hydro carbon” would be found on the cloth on the cloth of the victim. It was responsibility of prosecution to establish to that extent the presence of “hydro carbon” on the cloth. 14. In absence of such evidence, the prosecution has failed to established an important circumstance of actual sprinkling of the kerosene on the deceased. 15. The Court has thereafter taken into consideration the evidence of the prosecution witnesses, who are the family members of the deceased and complainant. PW -1 – Kasturbhai is the father of the deceased who has been examined vide Exh.13 in the evidence in chief of this witnesses he has categorically deposed that when he met his daughter (deceased) first time after the incident in which she received the burn injuries. She had narrated to this witness that while she was cooking on the prymus the lid of the prymus came off resulting into a blast which caught fire to the clothes of the deceased, as result of which she received burn injuries. She had narrated to this witness that while she was cooking on the prymus the lid of the prymus came off resulting into a blast which caught fire to the clothes of the deceased, as result of which she received burn injuries. This witness was declared hostile and in the cross examination on behalf of the State, this witness has not supported the theory as proposed by the prosecution about the sprinkling of the kerosene by the accused persons and setting the deceased on fire. On the other hand in the cross examination on behalf of the defence this witness has reiterated the story narrated by the deceased to her first time when they met her in the hospital. This witness in the cross examination has deposed that they had tutored the deceased out of passion so as to attribute role to the accused persons. 16. The Court has taken into consideration the evidence of yet another witness namely Puriben – PW -2 Exh. 15, who is the mother of the deceased and she has deposed identically to PW-1, she also in her deposition as narrated that it was deceased who had narrated the incident to her, when she met her at Civil Hosptial at Palanpur that while cooking the lid of the prymus came off resulting into accident of fire. This witness was also declared hostile. But this witness in the cross examination both by the Public Prosecutor as well as the defence counsel has stuck to her version. 17. The Court has thereafter taken into consideration the evidence of PW-3 Khanabhai at Exh.16 and PW-4 Danabhai at Exh.17, who was close relatives of the deceased. They have also deposed in the identical manner as the PW-1 have narrated the same story of accidental fire. In the cross examination by the defence counsel, this witness has deposed that it was in the heat of passion, they have tutored the deceased to give the dying declaration in a particular manner. With this deposition on the record on behalf of the prosecution the evidentiary value of the dying declaration would stand diluted. 18. The Court has also taken into consideration the evidence of PW-7 Shivlalbhai Chauhan and his deposition thus indicate the exact time by which the dying declaration was recorded. With this deposition on the record on behalf of the prosecution the evidentiary value of the dying declaration would stand diluted. 18. The Court has also taken into consideration the evidence of PW-7 Shivlalbhai Chauhan and his deposition thus indicate the exact time by which the dying declaration was recorded. However, if the first part of the deposition is taken into consideration, he has referred to Exh.33, which is ‘yadi’ recording of dying declaration, wherein according to this witness the doctor has made a remark that the patient is not in deposing capacity a recording the dying declaration. The cross examination of this witness would revealed at Exh.34, the document placed on record by this witness is not the document which pertain to the present case. However, it is a document which pertains to some another case. this aspect has been recorded by the Sessions Court in page -8 of it’s judgment wherein it has recorded the conduct of Magistrate in a callous manner the facts with regards to recording dying declaration was put on record, ultimately it is coming on record that the witness PW- 7 has never visited the Civil Hospital prior to 1:15 as is deposed by this witness, therefore it was only after 1:15 p.m. that the process of dying declaration has taken place. If the timing mentioned by this witness are compared with the timing of the Medical Officer who has examined as PW-6 Exh.26 – Dr. Shyamaldas in his deposition evidence in chief, he has categorically deposed that Manjulaben was as indoor patient till 1:30 p.m was in complete conscious state of mind. This witness has further deposed that around 1:30 the Magistrate had arrived for recording of dying declaration. However, he has deposed that there is no endorsement or remarks made in the case papers of this witness about the conscious state of mind. He has deposed that till 1:30 Manjulaben was in conscious state of mind but thereafter whether she was in conscious state of mind this witness unable to say for sure in fact the petitioner has deposed that Manjulaben after 1:30 was in the state of shock. 19. In view of the aforesaid depositions, the Court cannot come to a definite conclusion that when the dying declaration was recorded between 1:30 P.M. to 1:40 P.M. Manjulaben was in fit state of mind to give a dying declaration. 19. In view of the aforesaid depositions, the Court cannot come to a definite conclusion that when the dying declaration was recorded between 1:30 P.M. to 1:40 P.M. Manjulaben was in fit state of mind to give a dying declaration. In that view of the matter, the Court deems it fit to hold that the dying declaration at Exh.35 cannot be treated to be a piece of evidence on which the reliance can be placed to bring home the conviction against the accused persons. 20. Similarly, the story related in the FIR, which was recorded by a writer in presence of the Investigating Officer, the Court finds that there is nothing on record to indicate that Manjulaben was in full deposing capacity when the FIR was recorded at 3:45 the deposition in this connection of the Medical Officer clearly indicates that between 1:30 to 5:30 there was no medical check of Manjulaben to ascertain her capacity to give a statement with clear mind. In cross examination also this witness has depsoed that on account of the nature of injury i.e. 100% burn. The patient with such burn injury would obviously dabbling between shock and conscious state of mind. In that view of the matter, the Court is of the view that when the dying declaration has to be recorded or FIR has to be recorded, It is the responsibility of the prosecution to establish beyond reasonable doubt that the Manjulaben was in full deposing capacity to record the dying declaration and FIR. The prosecution having failed on this count, the Court deems it fit that the Sessions Court was justified in acquitting all the accused persons. 21. In so far as the appreciation of evidence of the hostile witnesses is concerned, the Court would relied upon decision of the Hon’ble Apex Court in case of Rajesh Yadav & Anr. vs. State of U.P. reported in 2022 (12) SCC 200 , wherein Para 22 and 23 are attributed specifically to the appreciation of evidence of the hostile witness. In para 22 the court has held as under: “22. The expression “hostile witness” does not find a place in the Evidence Act. It is coined to mean testimony of a witness turning to depose in favour of the opposite party. In para 22 the court has held as under: “22. The expression “hostile witness” does not find a place in the Evidence Act. It is coined to mean testimony of a witness turning to depose in favour of the opposite party. We must bear it in mind that a witness may depose in favour of a party in whose favour it is meant to be giving through his chief examination, while later on change his view in favour of the opposite side. Similarly, there would be cases where a witness does not support the case of the party starting from chief examination itself. This classification has to be borne in mind by the Court. With respect to the first category, the Court is not denuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief examination could be termed as evidence. Such evidence would become complete after the cross examination. Once evidence is completed, the said testimony as a whole is meant for the court to assess and appreciate qua a fact. Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the chief examination was completed and there are circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the court. It is well within the powers of the court to make an assessment, being a matter before it and come to the correct conclusion.” 22. Applying the same principle to the facts of the present case wherein the evidence of the relatives of the deceased examined at PW-1 to PW-4, in their defence in chief have deposed the manner in which the incident took place where no role is attributed to any of the accused persons rather it is come on record that in the incident was on account of accidental coming off the lid of the prymus which resulted into blast and catching of fire by the clothes of the deceased. This portion having been narrated by the witness in evidence in chief therefore the Sessions Court was justified in believing the version of this witnesses to that extent and therefore the witnesses were ultimately declared hostile the Sessions Court was justified in taking into consideration to the evidence of the witnesses to the limited extent. This portion having been narrated by the witness in evidence in chief therefore the Sessions Court was justified in believing the version of this witnesses to that extent and therefore the witnesses were ultimately declared hostile the Sessions Court was justified in taking into consideration to the evidence of the witnesses to the limited extent. 23. Lastly the Court is also agreeable to the reasoning attributed by the Sessions Court in not considering the dying declaration to be of such a quality on the sole basis of which the conviction can be arrived at. There are three dying declaration on record, one is Exh. 21 before the Doctor, another being Exh. 35 before the Magistrate and the third one being Exh. 37 before the Police Inspector. Perusal of these three dying declaration together would indicate that the first dying declaration at Exh.21 before the Doctor conveys the complete different story which is not in support of the prosecution theory even if subsequent two dying declaration are compared i.e. Exh.35 and 37 that upon closer scrutiny would reveal many discrepancies even within these two dying declaration and therefore none of the subsequent two dying declaration cannot be treated to be a sterling quality on which the conviction could be based on. 24. In case of Kamla Vs. State of Punjab and Haryana (Supra) the Hon’ble Apex Court in connection with the dying declaration has held that the dying declaration has to satisfy necessary tests and important test which such dying declaration has to satisfy that if there are more than one dying declaration such dying declaration should be consistent particularly in the material particulars. In the case before the Hon’ble Apex Court that when the dying declaration which was recorded by the Doctor as well as another independent witness and thus dying declaration were inconsistent with each other pertaining to the situation, the Apex Court did not treated such dying declaration to be a conclusive proof on the basis of which the conviction could be recorded. 25. The Apex court in the decision of Irfan alias Naka Vs. State of Uttar Pradesh, reported in 2023 SCC Online 1060, as after careful scrutiny of all the decisions pertaining to the dying declaration has enumerated the principles in Para-62, which would read as under: “62. 25. The Apex court in the decision of Irfan alias Naka Vs. State of Uttar Pradesh, reported in 2023 SCC Online 1060, as after careful scrutiny of all the decisions pertaining to the dying declaration has enumerated the principles in Para-62, which would read as under: “62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility: - (i) Whether the person making the statement was in expectation of death? (ii) Whether the dying declaration was made at the earliest opportunity? "Rule of First Opportunity" (iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person? (iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party? (v) Whether the statement was not recorded properly? (vi) Whether, the dying declarant had opportunity to clearly observe the incident? (vii) Whether, the dying declaration has been consistent throughout? (viii) Whether, the dying declaration in itself is a manifestation / fiction of the dying person's imagination of what he thinks transpired? (ix) Whether, the dying declaration was itself voluntary? (x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration? (xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?” 26. The Court may also draw strength from the decision of the Apex Court in case of Rajesh Prasad Vs. State of Bihar & Anr. reported in (2022) 3 SCC 471 , wherein the Apex Court has examined the case law with regard to the power of the High Court to overturned the decision of the Sessions Court where an another view is possible. considering the case including that of Chandrappa &Ors. vs. State of Karnataka reported in (2007) 4 SCC 415 , the Apex Court has culled out the general principles regarding the powers of the Appellate Court while dealing with the appeal against the order of acquittal. considering the case including that of Chandrappa &Ors. vs. State of Karnataka reported in (2007) 4 SCC 415 , the Apex Court has culled out the general principles regarding the powers of the Appellate Court while dealing with the appeal against the order of acquittal. The Apex Court has held that the appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, the appellate court has to keep in mind that in case of an acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence, and thereafter, upon securing of acquittal, the presumption is further reinforced, reaffirmed and strengthened, and therefore, whenever there are two reasonable conclusions are possible on the basis of the evidence on record, ordinarily, the Apex Court would not disturb the findings of acquittal recorded by the Trial court. 27. In the facts of the case the Court is of the view the version of the prosecution itself coming out on the basis of the three dying declaration cannot be treated to be of such quality on the basis of which the conviction could have been ever arrived at. 28. In the result, the appeal fails and is dismissed. The judgment and order dated 29.09.1997 passed in Sessions Case No.115 of 1988 by the Additional Sessions Judge, Palanpur stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. R & P be sent back to the concerned Trial Court, forthwith.