This appeal arises out of the judgement and order of conviction and sentence rendered by the learned Additional Sessions Judge, Fast Track Court No.2, Ahmedabad in Sessions Case No.231 of 2005 convicting the appellants – org. accused Nos.1 to 3 for the offence punishable under Section 498-A of the Indian Penal Code and sentencing to them to undergo RI for two years with fine of Rs.500/-, in default, to undergo 15 days RI. The appellants are also convicted for the offence punishable under Section 302 of the IPC and sentenced them to undergo RI for life with fine of Rs.500/-. All the sentences are ordered to run concurrently. However, the learned Judge was pleased to acquit the org. accused No.4 for the offences with which he was charged and tried. 2. The brief facts arising from the case are that on 07/04/2005 the Police Station Officer of Madhupura Police Station, Ahmedabad City received a telephonic Vardhi from Police Constable, Surendrasinh, who was deputed at Civil Hospital, that as per instructions of Dr.K K Amin, a lady named Madinabanu was admitted at about 18:30 hours in burnt condition and as stated by her before the Doctor, her brother- in-law and mother-in-law had poured kerosene and set her ablaze. Pursuant to information received by the PSO, Police Inspector, Madhupura Police Station was asked to visit Civil Hospital and to proceed with the investigation. PW No.16-Bhaskarrav Lakduji Vagh recorded the complaint of deceased – Madinabanu and started further investigation. After recording statements and collecting sufficient material, the Investigating Officer found that apart from brother- in-law and mother-in-law of the deceased, the husband as well as father-in-law of the deceased were also involved in the alleged offence and, therefore, charge-sheet was filed against the four accused persons in the Court of learned Metropolitan Magistrate, who in turn, committed the case to the Court of City Sessions, Ahmedabad City.
3. Charge was framed at Exh.1 to which accused pleaded not guilty and claimed to be tried. The trial Court at the end of trial found the appellants-accused guilty of the charges levelled against them and convicted and sentenced them, as recorded herein above, however acquitted org. accused No.4 – father- in-law from the charges levelled against him. Hence, this appeal.
4. Learned Advocate Mr.Bhunera submitted that there is no eye-witness to the incident and the case rests solely on dying declaration made by the deceased before different persons. He submitted that dying declaration made before the parents of the deceased involved four accused persons, who were charge-sheeted by the Police. The second dying declaration, which is in the form of history given by the deceased before Dr. K K Amin, involves only brother-in-law and mother- in-law and names of husband and father-in-law were not given by the deceased. Similarly, one more history which was recorded by another Dr.Manish L. Jain which involves eight persons including the four accused persons, and lastly the fourth dying declaration which was recorded in the form of FIR, which involves only three accused persons, i.e., husband, mother-in-law and brother-in-law. He, therefore, submitted that there is inconsistency in the dying declarations recorded and, therefore, the benefit may be given to the accused persons.
4.1 Mr.Rupera further submitted that prosecution has not examined any independent witness who had gathered immediately after the incident in question and, in absence of any independent witness, though available, the trial Court ought not to have convicted the accused relying upon only on the evidence of relatives before whom the oral dying declarations were made by the deceased. In support of his submission, learned Advocate for the appellants relied upon two decisions one in case of Subhash Vs. State of Haryana reported in (2011) 2 SCC 715 and another in case of the Surinder Kumar Vs. State of Haryana, reported in (2011) 10 SCC 173 and submitted that the benefit of the same may be given to the appellants-accused by setting aside the conviction and sentence recorded by the trial Court.
5. The appeal is opposed to by learned Additional Public Prosecutor, Mr.Dabhi. He submitted that the findings recorded by the trial Court convicting the accused are well founded and supported with documentary evidence. There is no inconsistency in the dying declarations and the deceased had described the incident and involvement of the accused is seen from oral dying declaration given by deceased to her parents, the history given by deceased to the doctors and the FIR in which she had given the names of accused persons and, therefore, no interference is called for.
6. We have heard learned Advocate Mr.Bhunesh Rupera appearing for the appellants and learned Additional Public Prosecutor, Mr.L B Dabhi, appearing for respondent – State. We have also examined the record and proceedings.
7. PW No.9-Sulemanbhai Yusufbhai Kureshi, father of deceased, is examined at Exh.22. It appears that the deceased was taken to Civil Hospital with the help of this witness. This witness has deposed that he inquired about the incident with her daughter who informed that her husband, mother-in-law, father-in- law and brother-in-law were demanding money and they had tied her and after pouring kerosene, set her ablaze.
7.1 Similar is the say of PW No.12-Saqil Yusufbhai Kureshi, uncle of deceased, who has been examined at Exh.25. This witness had also gone with the father of the deceased at the Civil Hospital.
7.2 PW No.10 – Samimbanu Sulemanbhai Kureshi, mother of deceased examined at Exh.23, has also deposed that she was travelling in the ambulance while her daughter was being taken to hospital after the incident, at that time, her daughter informed that her husband, father-in-law mother-in-law and brother-in- law were demanding money and after pouring kerosene on her, she was set ablaze.
8. So far as these three witnesses are concerned, they are consistent about the involvement of the four accused persons, out of whom, one accused i.e. father-in-law, has already been acquitted by the trial Court.
9. Now, if the evidence of PW No.15 – Dr.Ketulbhai Kantibhai Amin, who has been examined at Exh.29, is seen, the history given by the deceased before this witness is proved from Exh.31 (OPD papers) in which history given by the deceased is recorded. The history includes names of mother-in-law and brother-in-law. This doctor had informed the Police Constable – Surendrasinh about the incident, who was on duty, who in turn, informed the Madhupura Police Station about the incident and accordingly investigation started. The said entry in the form of Verdhi which was recorded by PSO, is produced at Exh.36. The vardhi (Exh.36) mentions the names of mother-in-law and brother-in-law.
10. The deceased, who was subsequently transferred to Burns-Ward, again gave history before Dr.M S. Jain (PW No.17) examined at Exh.51. The history given before this doctor involves 08 persons including the present appellants. The history recorded by Dr.Jain is produced at Exh.52 which shows names of 08 accused persons.
11. It is pertinent to note here that both these doctors have denied the suggestions made by the defence that the deceased was not in a position to speak or give history as recorded by them.
12. Now, if the FIR (Exh.34), which was recorded by PSI, who has been examined as PW No.16 - Bhaskarrao Lakduji Vag at Exh.33, is seen, it involves the appellants herein i.e., brother-in-law, husband and mother-in-law.
13. So far as the dying declaration is concerned, we are of the opinion that the deceased was consistent insofar as it relates to the incident of pouring kerosene, setting her ablaze and the date and time of the incident. However, it appears that when she was admitted in the hospital and history was given by her before Dr.K K Amin, she had given the names of her mother-in-law and brother-in-law (appellants No.1 and 3). Whereas, the history again recorded by Dr.Jain involves eight persons in the incident, including the present appellants, and the FIR discloses names of the present appellants only.
14. Now, so far as the decision in case of Subhash (Supra), as relied upon by the learned Advocate for the appellants, is concerned, in our view the facts of that case are totally different than the case on hand. In that case, the deceased had given statement before the Doctor in which she had stated that she was burnt in an accident and thereafter dying declaration was recorded by the Executive Magistrate who had no jurisdiction, since the hospital did not fall within his area. The contradictions were proved, since the witnesses who claimed that the oral dying declarations made by the deceased before them were not consistent with the statement, which had been recorded by the Police and therefore this decision would not be applicable to the facts of the present case.
15. The principle laid down by the Hon'ble Apex Court in the decision rendered in the case of Surinder Kumar (Supra), which has been relied upon by learned Advocate for the appellants, is binding to this Court, but the dying declaration must be scrutinized carefully and must ensure that dying declaration is recorded with prior endorsement to the effect that victim is in fit state of mind to give her dying declaration. In the present case, dying declaration is in the form of history given by the deceased to the doctor himself which establishes involvement of appellants No.1 and 3. Both the doctors have deposed that she was in a fit state of mind to speak.
16. It is well settled principles of law that the evidenciary value of dying declaration is of a nature wherein the person who has made a declaration cannot be tested before the Court in absence of any deposition. Therefore, if the Court finds that the dying declaration made is coherent, consistent and trustworthy and appears to have been made voluntarily by deceased, the conviction can be based on it even if there is no corroboration. It is also well settled principle of law in catena of decisions that if a person recording such dying declaration is satisfied that the declarant is in a fit mental condition to make a dying declaration, then such dying declaration would not be invalid solely on the ground that the Doctor had not certified as to the condition of the declarant to make the dying declaration.
17. The Hon'ble the Apex Court in case of Muthu Kutty & Anr. Vs. State by Inspector of Police, Tamil nadu, reported in AIR 2005 SC 1473 has held in paragraph Nos.15, 16, 17 and 18 as under:
“15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Smt. Panjben v. State of Gujarat, AIR(1992) SC 1817:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja & Anr. v. The State of Madhya Pradesh, [1976] 2 SCR 764)
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of Uttar Pradesh v. Ram Sagar Yadav and Ors., AIR (1985) SC 416 and Ramavati Devi v. State of Bihar, AIR (1983) SC 164)
(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See K. Ramachandra Reddy and Anr. v. The Public Prosecutor, AIR (1976) SC 1994].
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg. v. State of Madhya Pradesh, [1974] 4 SCC 264).
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See Kaka Singh v. State of M.P., AIR (1982) SC 1021].
(vi) A dying declaration with suffers from infirmity cannot form the basis of conviction. (See Ram Manorath and Ors v. State of U.P., [1981] 2 SCC 654)
(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR (1981) SC 617].
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See Surajdeo Oza and Ors v. State of Bihar, 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 said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See Nanahau Ram and Anr. v. State of Madhya Pradesh, 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. [See State of U.P. v. Medan Mohan and Ors., AIR (1989) SC 1519].
(xi) 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 declaration could be held to be trustworthy and reliable, it has to be accepted. [See Mohanlal Gangaram Gehani v. State of Maharashtra, AIR (1982) SC 839].
16. In the light of the above principles, the acceptability of alleged dying declaration in the instant case has to be considered. The dying declaration is only a piece of untested evidence and must like any other evidence,satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration. (See Gangotri Singh v. State of U.P., JT (1992) 2 SC 417, Goverdhan Raoji Ghyare v. State of Maharashtra, JT (1993) 5 SC 87, Meesala Ramakrishan v. State of Andhra Pradesh, JT (1994) 3 SC 232 and State of Rajasthan v. Kishore, JT (1996) 2 SC 595).
17. There is no material to show that dying declaration was result of product of imagination, tutoring or prompting. On the contrary, the same appears to have been made by the deceased voluntarily. It is trustworthy and has credibility.
18. It was observed by a Constitution Bench of this Court in Laxman v. State of Maharashtra, [2002] 6 SCC 710 that where the medical certificate indicated that the patient was conscious, it would not be correct to say that there was no certification as to state of mind of declarant. Moreover, state of mind was proved by testimony of the doctor who was present when the dying declaration was recorded. In the aforesaid background it cannot be said that there was any infirmity. Further if the person recording the dying declaration is satisfied that the declarant is in a fit medical condition to make dying declaration then such dying declaration will not be invalid solely on the ground that the doctor has not certified as to the condition of the declarant to make the dying declaration. (See Rambai v. State of Chhattisgarh, [2002] 8 SCC 83). In the instant case contrary to what accused-appellants plead, the doctors' certificate is there.”
17.1 In the present case, as stated herein above, the first dying declaration, which was made by the deceased before the Doctor, who recorded it as a history given by the deceased, involves appellants No.1 and 3. In Paragraph No.15 (xi) quoted above, it is held that when there are more than one statement in the nature of dying declaration, first in point of time should be preferred.
18. In case of Rambai Vs. State of Chhatttisgarh reported in (2002) 8 SCC 83, the Hon'ble Apex Court has held that the dying declaration, which does not contain the certificate of the Doctor, cannot be rejected on that sole ground, so long as the person recording the dying declaration was aware of the condition of declarant to make such dying declaration. In case of Rambai (Supra) the Apex Court, on facts, has held that though the victim was suffering from 85% burns injuries, where the Doctor found that though he had not treated the injured, the declarant was in a fit mental condition to make dying declaration, the same can be accepted. In the present case, also two different doctors have recorded the dying declaration in the nature of history given by the deceased in which she involves the appellants No.1 and 3.
19. In case of Laxman Vs. State of Maharashtra reported in AIR 2002 SC 2973, the larger Bench of the Hon'ble the Apex Court has held in paragraph No.3 as under:
“The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross- examination are dispensed with. Since the accused has no power of cross- examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.”
20. In the present case, looking to the depositions of Doctors supported by documentary evidence in the nature of history recorded by them in the history case papers, we conclude that the deceased was in a fit state of mind to give dying declaration.
21. The defence taken by the accused in their statements recorded under Section 313 of the Code is that the deceased had died due to burn injuries sustained because of short-circuit in the house and except the deceased, nobody was present in the house. This defence is found incorrect and false, since the dying declaration made by the deceased is supported by corroborative evidence like FSL Report in which the particles of kerosene of petroleum hydrocarbons were found from the clothes of deceased which was discovered by the Investigating Agency.
22. Now, considering the evidence of all these above referred witnesses, the fact emerges that accused persons had ill-treated the deceased and the history recorded in the form of dying declaration also proves the act of the accused of giving ill-treatment to the deceased. Thus, the involvement of the accused persons in offence punishable under Section 498-A of the Indian Penal Code is clearly proved.
23. However, as stated herein above, looking to the dying declarations recorded by different public officers, offence punishable under Section 302 of the Indian Penal Code is established against A-1 and A-3. All dying declarations are consistent about involvement of A-1 and A-3 in the incident. However, there is inconsistency about involvement of A-2 and, therefore, benefit of doubt has to be extended to A-2 for the said offence.
24. In the result, the appeal is partly allowed. The judgment and order of conviction and sentence rendered by the learned Additional Sessions Judge, Fast Track Court No.2, Ahmedabad in Sessions Case No.231 of 2005 on 29/05/2006, so far as it relates to the offence punishable under Section 498(A) of the IPC in respect of all the accused persons, is confirmed.
25. The judgment and order of conviction and sentence, so far as it relates to the offence punishable under Section 302 of the IPC, is confirmed in respect of org. accused Nos.1 – Husanabanu Sahidbhai Kureshi and org. accused No.3 – Jahid @ Javed Sahidbhai Kureshi. Whereas, the conviction and sentence of org. accused No.2 – Vahid Sahidbhai Kureshi for the said offence is hereby set aside and he is acquitted of the offence punishable under Section 302 of the IPC. He be set at liberty forthwith, if not required in any other case. Fine, if paid by org. accused No.2, in respect of offence punishable under Section 302 of the IPC, is ordered to be refunded to him.
(A L DAVE, J.)
(A J DESAI, J.)
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