[1] The present appeal, under Section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 30.09.1995 passed by the learned Assistant Sessions Judge, Mehsana, in Sessions Case No.115 of 1993, whereby the learned Judge has acquitted the respondents – accused from the charges levelled against them.
[2] The brief facts of the case of prosecution are that before eight days of 09.08.1992, when the complainant Dineshbhai was at his field, at that time, the accused No.1 and 2 had quarreled with him, regarding illicit relation with one Manjula and they threatened the complainant to leave the village and if complainant would not leave the village, then accused will kill him. It is also alleged in the complaint that even the accused No.3 had also harassed the complainant again and again on the issue of illicit relation with Manjula and on account of this, the complainant was mentally disturbed and left his house. It is also alleged that on 08.08.1992 at about 6.00 p.m., the complainant had consumed pesticide in the empty coach of train and he died. Therefore, the complaint was lodged against the accused for the offence under Sections 506(2), 306, 114 of I.P. Code.
[3] Necessary investigation was carried out, statements of the witnesses were recorded. Thereafter, after completion of investigation, the charge-sheet was filed against the respondents – accused in the Court of learned J.M.F.C. Thereafter, as the case was triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. Thereafter, the charge was framed against the respondents – accused. The respondents – accused pleaded not guilty to the charge and claimed to be tried.
[4] To prove the case against the respondents - accused, the prosecution has examined the following witnesses.
[5] In addition to this, the prosecution also produced documentary evidence like yadi, seizure panchnama of injured, panchnama of scene of offence, complaint of Dineshbhai Somabhai, Inquest report, police report as regards sending of dead body, dying declaration of Dineshbhai Somabhai, Medical Certificate (M.L.C.No.4/80) of Dineshbhai Somabhai, receipt of FSL regarding receiving muddamal, note of muddamal, FSL report, forwarding letter of FSL, P.M. Note.
[6] At the end of trial, after recording the statements of the respondents – accused, under Section 313 Cr. P.C., and after hearing the arguments on behalf of the prosecution and the defence, the learned Assistant Sessions Judge vide the impugned Judgment and order, has acquitted the respondents – accused of the charges levelled against them.
[7] Being aggrieved and dissatisfied with the Judgment and order passed by the Assistant Sessions Judge the appellant – State has preferred the present Appeal. At the time of admission, this Court vide order dated 04.04.1996 admitted the appeal qua respondents No.1 and 2 and summarily dismissed the appeal qua respondent No.3.
[8] Heard Ms.Jirga Jhaveri learned APP for the appellant – State and Mr.Utpal M. Panchal, learned advocate for the respondents.
[9] Learned APP for the appellant – State has vehemently argued that the learned Judge has committed an error in considering the oral as well as documentary evidence produced on record. She has contended that the learned Judge cannot ignore the law laid down by the Hon'ble Apex Court. She has contended that when the dying declaration recorded by the Executive Magistrate and endorsement regarding consciousness of the patient made by the Doctor then how the learned Judge can ignore that evidence and without any reason, the learned Judge could not have discarded that documentary. She has contended that when the law is laid down by the Hon'bleSupreme Court on the issue of dying declaration, learned Juge cannot ignore the same. She has contended that the chit of the deceased was recovered from the pocket of the deceased himself, the learned Judge has not considered the version made in the chit. She has read oral evidence of the Executive Magistrate, Dahyabhai Joitaram Patel, P.W.1 Ex.31 and contended that as per the oral version of this witness, it is disclosed by him that on 09.08.1992 at about 19.25 hours, when he was on duty as Deputy Mamlatdar and Executive Magistrate, he received one Yadi from the police. Thereafter, he reached the Civil Hospital and contacted Medical Officer and then he visited the patient - Dineshbhai Somabhai, and inquired about physical and mental condition of the patient and found that at that time, he was conscious and even the medical officer has also endorsed that the patient was conscious. This witness, at about 20.05 hours, recorded the dying declaration at Ex.33 of the deceased and after recording the dying declaration, he obtained thumb impression of Dineshbhai and he also signed on the dying declaration and the Medical Officer has also put his signature below it. She has contended that P.W.1 has also disclosed that the dying declaration was read over by him to the deceased. She has also read the cross-examination of P.W.1 and contended that a person who is on death bed cannot speak lie. She has contended that the dying declaration (Ex.33) is proved by the prosecution beyond reasonable doubt through oral version of the P.W.1, that contention cannot be overlooked by the learned Judge. She has read the Yadi at Ex.32 and she has also read endorsement, that the patient is conscious. She has contended that even at the end of the dying declaration at Ex.33, the fact that the patient was conscious was certified by the medical officer. Learned APP has further read over the evidence of P.W.2 – Dr.Kantilal Ishwardas Patel, Ex.34 and contended that P.W.2 has admitted that the patient Dineshbhai was admitted in the hospital and at that time the patient had unconscious and after treatment, the condition of the patient was improved. P.W.2 disclosed that on 09.08.1992 at about 9.00 a.m, the physician had given the report that condition of the patient was normal. She has argued that P.W.2 has issued certificate at Ex.35 and also stated that the poison was consumed by the patient. She has argued that when the mental and physical position of the patient is proved and that fact is also disclosed by the independent witness Executive Magistrate, then his evidence cannot be discarded by the learned Judge. She has also read the oral version of the P.W.3 – Dr.Dhirajlal Jivanlal Soni, Ex.36, who carried out the postmortem and contended that as per the report of the doctor, it is proved beyond reasonable doubt that the cause of death is due to organic phosphorus poisoning. She has contended that in the cross-examination, P.W.3 has stated that he has not stated in column No.17 of P.M. Note that he had not seen any injury on right hand of the deceased. She has argued that the cause of death was shown by the medical officer is due to consuming poison. She has also contended that the defence has never made any attempt to establish its probable defence. She has read the evidence of P.W.4 – Somabhai Bechardas Patel, Ex.38, who is father of deceased and contended that the deceased has committed suicide by consuming pesticide and he died. This witness also stated that accused caused mental and physical harassment and also administered threat to the deceased and, therefore, deceased committed suicide and died.
[10] She has read the provision of Sections 108 and 306 of the Indian Penal Code and argued that in light of the said provisions, the aspects of provocation, abetment and instigation made by the respondents are proved, but the learned Judge has wrongly observed that the prosecution could not be able to prove its case beyond reasonable doubt. She has contended that the main ingredients of Section 306 and Section 506 of the Indian Penal Code is proved beyond reasonable doubt before the learned Judge, but the same has been ignored by the learned Judge. She has read the examination of P.W.5 – Bakorbhai Mohanlal Chauhan, Ex.39 and contended that so far as the contents of the panchnama Ex.40 is concerned, this witness has proved the version of the panchnama and disclosed that when the deceased was lying on the stretcher, at that time, police recovered one chit and pen from the pocket of the pent of the deceased. She has contended that in the cross-examination of P.W.5, defence has never made any attempt to dislodge the recovery of the chit. She has argued that there was a chance to the defence to establish that discovery made from the pocket of the pent of the deceased is genuine or concocted, but, when no attempt is made by the defence, then, the learned Judge should not have ignored the evidence of this witness. She has read panchnama Ex.40 and argued that it is true that in the panchnama at Ex.40, it is mentioned that the chit is recovered from the pocket of the shirt of the deceased. She has argued that in oral evidence of P.W.5, he has never disclosed that from where the chit and pen both were recovered, either from the shirt or the pent. She has argued that this witness has simply disclosed that from the pocket of the deceased the chit and pen were recovered. She has further read the evidence of P.W.6 – Chimanlal Bhudarrao Raval Ex.41, who is retired police jamadar and who has taken over investigation from the head constable i.e P.W.8 – Anna Maruti Ex.47. He has disclosed that he has investigated the case and, thereafter, further investigation was handed over to P.S.I. She has read the oral evidence of P.W.7 – Dr.Sudhir Babulal Sakaria Ex.45 and medical certificate Ex.46 and contended that this witness had endorsed about physical condition of the deceased. She has contended that from the cross-examination, the defence could not get any fruit. She has further read the oral evidence of P.W.8 – Anna Maruti Ex.47 and argued that he is a material witness, who was Investigating Officer and in his presence, through panchnama at Ex.40, the chit was recovered from the pocket of the deceased. P.W.8 has also disclosed that the deceased was conscious and everything was disclosed by him. P.W.8 has also recorded the dying declaration of Dineshbhai which is produced at Ex.48. She has argued that no doubt Ex.48 is dying declaration of the deceased, recorded by the police, and in light of the observation of the Hon'ble Supreme Court, the dying declaration which is recorded by the police can be said to be dying declaration. She has argued that the learned Judge has wrongly observed that the prosecution has not proved the dying declaration of the deceased which is recorded by P.W.8. She has contended that from the chit at Ex.49, it is disclosed by the deceased that due to abetment and provocation of the respondents, the deceased had committed suicide. She has argued that the muddamal which is forwarded to the FSL is also proved through Ex.54 and 55. She has further read noting of dispatch at Ex.52 and expert report at Ex.54 and contended that the name of pesticide which is consumed by the deceased is also proved through the FSL report. She has argued that the learned Judge has wrongly considered is opinion and wrongly acquitted the present respondents.
[11] Learned APP for the appellant – Stated has relied upon the decision in the case of Dharam Pal Vs. State of U.P., reported in 2008 Cri.L.J. 1016 wherein the Supreme Court has observed that “where the report of occurrence was dictated by the deceased himself and the same was read over to him after which he had put his thumb impression on the same. This report is admissible under S.32 of the Evidence Act as a dying declaration”. In view of the above, any statement made by the deceased in dying declaration is admissible in evidence under Section 32 of the Evidence Act.
[12] She has relied upon the decision in the case of Dayal Singh Vs. State of Maharashtra reported in 2007 (5) SCR 1173 and contended that as per law laid down by the Apex Court, dying declaration recorded by the police officer can be considered as reliable and trustworthy evidence. She has also relied upon the decision in the case of Betal Singh Vs. State of M.P., reported in AIR 1996 SC 2770 and contended that it is proved and established from the evidence that the dying declaration recorded by the police officer was free from any effort to prompt the deceased to make such a statement.
[13] She has also relied upon the following decisions
(1) In the case of Lallubhai Devchand Vs. The State of Gujarat, reported in AIR 1972 SC 1776;
(2) In the case of Ramawati Devi Vs. State of Bihar reported in AIR 1983 SC 164;
(3) In the case State of Assam Vs. Muhim Barkatari, reported in AIR 1987 SC 98 ;
(4) In the case of Surinder Kumar Vs. State of Haryana reported in AIR 1992 SC 2037;
She has contended that the learned Judge has committed an error in acquitting the respondents. She has also contended that, prima facie, when the case is made out against the respondents then the judgment and order is required to be quashed and set aside. She has also contended that the offence is proved the appeal is required to be allowed by awading sentence as per the provisions of law.
[14] Learned advocate appearing on behalf of the respondents has contended that the dying declarations of the deceased were recorded by the P.W.1 and P.W.8. He has contended that from both the dying declaration, two sets of facts are established through oral as well as documentary evidence of the witnesses – Anna Maruti and Executive Magistrate. He has contended that when the deceased was admitted in the hospital, at that time, he was unconscious and he was unable to speak, yet, Investigating Officer has created a concocted story. When yadi received by the Executive Magistrate, the Executive Magistrate reached to the hospital, and at that time, the deceased was unconscious and his brother was Executive Magistrate and Mamlatdar at Radhanpur. The Executive Magistrate has recorded concocted and false story in the form of dying declaration. He has contended that oral evidence of the police witnesses also doubtful.
He has read the version of the panchnama regarding recovery of chit from the pocket of the deceased. He, by relying upon the version of the panchnama, has argued that it was not the duty of the respondents to disprove the presumption and to make proper probable defence in the cross-examination. He has argued that in the statement recorded under Section 313 of the Criminal Procedure Code, the accused had made out probable defence that they have not committed offence. It is also contended that the learned Judge has rightly discarded the oral as well as documentary evidence of the prosecution witnesses. He has also contended that when two different types of the evidence are produced on record stating two sets of facts then the benefit of doubt is required to be given to the accused. Learned advocate for the respondents has relied upon the decisions in the case of V. S. Achuthanandan Vs. R. Balakrishna Pillai and others, reported in AIR 2011 SC 1037 and in the case of Govindaraju alias Govinda Vs. State by Sriramapuram P.S. and another reported in AIR 2012 SC 1292.
[15] I have undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to the broad and reasonable probabilities of the case and the contentions raised by both the sides.
[16] I have perused the evidence produced on the record. First of all, it is required to be noted that the question involved in present appeal is as to whether the dying declaration, can be considered as legal and reliable evidence. I have perused oral evidence of the P.W.1 - Executive Magistrate, who has disclosed that when he visited the hospital, at that time, the deceased was conscious. He also verified the physical condition of the deceased from the doctor. He has also endorsed that at the time of recording the dying declaration, the deceased was conscious and even in support of that, the doctor who is independent witness and public servant endorsed that at the event of recording of dying declaration, by this witness, the patient was conscious. I have also perused the evidence of the Executive Magistrate. This witness has disclosed that he had read over the dying declaration and obtained thumb mark of the deceased. The witness Anna Maruti has also disclosed that when he reached the hospital, at that time, the deceased was conscious. He has also verified the physical condition of the deceased and then recorded the statement of the deceased. In connection with the contention of the learned APP that how the statement recorded by the police in the form of dying declaration can be discarded, I have perused the oral evidence of the witness Anna Maruti and also the decisions relied upon by the learned APP. I have also perused the chit which is recovered, under panchnama, from the pocket of the deceased from which it appears that the version of the chit also disclosed that the deceased was instigated and provoked by the present accused to commit suicide. I have scrutinized the P.M. Report and FSL Report. It appears that the learned Judge has simply observed that the dying declarations recorded by the police and the Executive Magistrate are not trustworthy. It was the duty of the learned Judge to consider in a reasonable manner and given proper and sufficient reason as to how both the dying declarations are not reliable and acceptable. The learned Judge has simply observed that the case of the prosecution creates some doubt and the prosecution has failed to prove its case and, in the result, the learned Judge has acquitted the respondents. However, in light of the decisions and observations of the Hon'ble Apex Court, it is the duty of the learned Judge to consider the dying declarations recorded by the Executive Magistrate and Anna Maruti, as to whether it is trustworthy, reliable and acceptable or not. I have perused the oral evidence of the Executive Magistrate, P.W.1 and considered the observations of the Hon'ble Supreme Court in the case of Dharam Pal Vs. State of U.P., reported in 2008 Cri.L.J. 1016 and in my opinion the prosecution has proved that the dying declaration is dictated by the deceased himself in conscious state of mind. Even Ex.48 dying declaration, recorded in the form of the statement of the deceased by Railway Police Jamadar which is also read over to the deceased, is proved that it was dictated by the deceased. I have also perused the observations of the Hon'ble Supreme Court made in Dayal Singh Vs. State of Maharashtra reported in 2007 (5) SCR 1173 wherein it is observed that dying declaration recorded by the police officer can be considered reliable and trustworthy. In present case second dying declaration is recorded by the Executive Magistrate which also seems to have been dictated by the deceased in conscious condition. It appears that the learned Judge has not scrutinized the version of the dying declaration. The same view is taken by the Hon'ble Supreme Court in the case of Betal Singh Vs. State of M.P., reported in AIR 1996 SC 2770. I have also perused both the dying declarations and chit also closely for its truthfulness and reality, in light of the surrounding circumstances and the facts of the case. It is pertinent to note that the Executive Magistrate and the police man are the independent witnesses and that they have no reason to falsely involve the present respondents in commission of offence. The defence has not established any enmity with the said independent witnesses and the respondents. It is also considered that a person the Executive Magistrate and police man Anna Maruti are normally not likely to implement innocent person as also observed by the Supreme Court in the case of Lallubhai Devchand Vs. The State of Gujarat, reported in AIR 1972 SC 1776. I have carefully scrutinized the cross- examination of the defence also and it is stated in the cross- examination that at the time of recording of dying declaration the deceased was not conscious and was unable to give statement and was not in a position to speak properly. I have also perused the observation of the Hon'ble Supreme Court in the case of Surinder Kumar Vs. State of Haryana reported in AIR 1992 SC 2037. The dying declaration made by the deceased in the hospital was before the judicial magistrate and the doctor certified that the patient remained conscious during the period of statement and there is no infirmity in recording of the dying declaration.
[17] As per the above observation, prima facie, it is proved and established beyond reasonable doubt that the learned Judge has not applied his mind and has wrongly considered the evidence produced on the record by prosecution. In my opinion, the learned APP has properly argued the matter and rightly gone through the observations of the Hon'ble Apex Court. I am of the opinion that the learned Judge has committed grave error in not properly considering the case of the prosecution.
In view of the above, the judgment and order of the learned Judge is quashed and set aside. The respondents are held guilty of the offences charged against them.
[18] So far as the conviction of the respondents is concerned, learned advocate for the respondents has contended that looking to the date of offence, date of judgment, hearing of the appeal, some lenient view is required to be taken.
[19] Learned APP for the appellant – State has opposed the aforesaid submissions. She has also contended that the respondents have made vague allegation that the deceased had illicit relation and, therefore, the respondents have committed an offence punishable under sections 506(2) of the Indian Penal Code, that issue is also required to be considered. She has read over the provisions of section 506 of the Indian Penal Code which provides seven years conviction with fine and death. As against that, learned advocate for the respondents has prayed to award minimum sentence.
[20] Looking to the facts of the case, it is true that vague allegations were made by the respondents about illicit relation and just to maintain dignity and honour, he has committed suicide. In result, I am of the opinion that looking to the provisions of Sections 306 and 506(2) r/w. section 114 of the Indian Penal Code, no lenient view can be taken in favour of the respondents. However, looking to the date of filing of the complaint and date of the judgment and hearing of this appeal and considering that the offence is punishable under Section 306 of the Indian Penal Code, the five years sentence with fine of Rs.1,000/- is sufficient and no separate sentence under section 506(2) of the Indian Penal code is required to be awarded.
[21] In the result, the appeal is allowed. The judgment and order dated 30.09.1995 passed by the learned Assistant Sessions Judge, Mehsana, in Sessions Case No.115 of 1993 is hereby quashed and set aside.
The respondents No.1 and 2 are held guilty for the offences punishable under sections 306 and 506(2) r/w. section 114 of the Indian Penal Code. The respondents No.1 and 2 are convicted for the offence punishable under Section 306 of the Indian Penal Code and are sentenced to undergo rigorous imprisonment of five years and to pay fine of Rs.1,000/- each, in default, to undergo further rigorous imprisonment of six months. No separate sentence is awarded so far as the offence punishable under Section 506(2) of the Indian Penal Code. The respondents are hereby directed to surrender before the jail authority within a period of four weeks from the date of this order. Office is directed to transmit back the Record and Proceedings to the concerned trial Court forthwith.
(vijay) [ Z. K. SAIYED, J. ]