IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1070 of 2006 For Approval and Signature:
HONOURABLE MR.JUSTICE D.H.WAGHELA HONOURABLE MR.JUSTICE Z.K.SAIYED =========================================================
========================================================= SURESH NARMADASHANKAR PANDYA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance :
MR ASHISH B DESAI for Appellant(s) : 1, MR NJ SHAH, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 14/12/2012 C.A.V. JUDGMENT (Per : HONOURABLE MR.JUSTICE Z.K.SAIYED)
1. By way of present appeal, filed under Section 374 of the Code of Criminal Procedure, 1973, the appellantaccused has challenged the judgment and order of conviction dated 31.1.2006 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No.2, Ahmedabad City, in Sessions Case No.105 of 2004, whereby the learned Sessions Judge convicted and sentenced the appellantaccused to rigorous life imprisonment for the offence punishable under Section 302 of the Indian Penal Code. The learned Sessions Judge further convicted and sentenced the appellantaccused to rigorous imprisonment for 3 years for the offence punishable under Section 498A of the Indian Penal Code. Both the sentences were ordered to run concurrently. The learned Judge also imposed fine of Rs.5,000/ under both the above sections and in default of nonpayment of fine the appellantaccused was ordered to undergo rigorous imprisonment of further 5 months.
2. The short facts of the prosecution case are that, seven years prior to 9.7.2002 marriage of accused was solemnized with deceased Rupaben and since then he was residing with her. The accused used to quarrel with her by demanding money and also used to beat her. The accused also used to subject her to mental and physical torture. On 9.7.2002, at about 2:30 or 3:00 p.m., while the deceased Rupaben was sleeping in her husband’s house the accused, with an intention to cause her death, poured kerosene upon her body and threw a burning matchstick upon her and thereby burnt her, caused hurts, killed her and thereby committed her murder. Thus, the accused committed an offence punishable under Sections 302 and 498A of the Indian Penal Code.
3. Thereafter, investigation was carried out and statements of several witnesses were recorded by the Investigating Officer. During the course of investigation, accused person was arrested and, ultimately, chargesheet came to be filed against appellantaccused.
4. Thereafter, charge at Exhibit 01 came to be framed and explained to the accused, to which the accused pleaded ‘not guilty’ and claimed to be tried.
5. In order to bring home the charges against the accused, prosecution has examined the following witnesses.
6. The prosecution also produced the following documentary evidence to prove the case against the accused.
7. Thereafter, further statements of accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused denied the case of the prosecution and submitted that a false case was filed against him.
8. Mr.Ashish B. Desai, learned counsel appearing for the appellant submitted that learned trial Court has erred in believing the prosecution case which is full of infirmities, contradictions and improvements which are very material and hence serious doubts were raised against trustworthiness of the prosecution evidence. However, the said improvements, contradictions and infirmities in the evidence of the prosecution witnesses have been overlooked while passing the impugned judgment and order.
9. Mr.Desai submitted that the impugned judgment and order is bad inasmuch as the appellant is convicted under Section 302 and 498(A) of the Indian Penal Code. The Court ought to have considered the fact that the victim was almost 100% burnt as per the postmortem report and she died within 5 hours of the incident. Therefore, looking to grievous injuries she could not be at all in the position to give any statement or assist the police in lodging the FIR, and she could not have replied to the Executive Magistrate to record her dying declaration.
10. Mr.Desai submitted that the trial Court erred in appreciating the fact that in the the crossexamination of the learned Executive Magistrate, Mr.Mohmad Ibrahim, vide Ex.39, he had admitted that he did not
inquire whether the patient was in position to reply or not. He also did not receive any certificate in this regard from the concerned doctor. The Executive Magistrate admitted that concerned doctors were not present when the dying declaration was recorded. The Executive Magistrate also admitted that he did not inquire whether the body was 100% burnt. It is also admitted that he did not inquire about the heartbeats of the patient. No inquiry has been made whether the patient was conscious or not or the patient was under the effect of any medicine or not. According to him, it is admitted that the deceased was not completely conscious. He submitted that admittedly the deceased had given all answers in Gujarati which is not at all possible as she was Maharashtrian and she could not speak Gujarati at all. He further submitted that it is pertinent to note that even the postmortem report dated 10.7.2002 Ex.30 certify that there were nearly 100% burns all over the body of the deceased and, therefore, it was not at all possible that any human being can enter into such long conversation with anybody as the indepth details are provided in the dying declaration. Therefore, validity and legality of the dying declaration is suspected and the sentence of imprisonment has been passed only by taking the dying declaration as the sole reliable evidence.
11. Mr.Desai submitted that the trial Court has further erred in considering deposition of Mr.Abhinav Ray, Ex.9. The articles serial Nos.1 to 6 which were produced in the Court were not found with the signature of the panch. According to him, these articles were collected from the spot of incident without following necessary formalities and therefore, validity of these articles as evidence is itself in question. This witness has admitted that he was not present at the spot of incident when the panchnama was prepared. Therefore, the panchnama was not prepared in his presence. No evidence has been collected in his presence at all. He had admitted that the details in the panchnama were not furnished by him. He submitted that his signature was not taken on the materials received from the spot.
12. Mr.Desai submitted that the trial Court has erred in appreciating the evidence of Mr.Ravi Harshadray Desai, vide Ex.12, in which he has categorically admitted that he was present with his friends in the adjoining room near the spot of incident and when they realised the kerosene smell from the neighbouring room they rushed and the deceased opened the door from inside the room and she came out of the room and at that time she was burning. Mr.Desai submitted that, therefore it is an admitted position that the accused was not present over there at the spot and he was found on the ground floor sitting on a swing and the accused came to know about the incident when he was informed by Mr.Ravi and others. He submitted that as per learned Additional Sessions Judge, Fast Track Court, Ahmedabad if the accused had thrown the burning matchstick on the deceased, then it is not possible for the accused to run away closing the room from inside and it is not possible to come down on the ground floor and to sit on the swing. According to the map of the place of incident Ex.49, these two places are far from each other, one cannot travel such a long distance before the deceased shouts.
13. Mr.Desai submitted that the trial Court has further erred in appreciating the evidence of Dr.Prakash Patel, vide Ex.14, in which he has categorically admitted that on examining the patient it was found that the patient was burnt 94%. The lips and tongue of the patient were severely injured. In his deposition, the doctor has not stated anything about the recording of dying declaration at all. The doctor is not shown the dying declaration nor his signatures are found on the same. The doctor do not say anything about the presence of the Executive Magistrate. According to the learned counsel, it is admitted that if 30% of the body gets burnt then it can be said as a serious injury whereas the deceased was burnt 94%, therefore it is doubtful that the patient gave such a lengthy dying declaration.
14. Mr.Desai submitted that the trial Court has further erred in overlooking the contradiction in the evidence of the prosecution witnesses in describing the incident. From the statement recorded as a dying declaration it becomes difficult to believe that the deceased had entered into such a long conversation. Therefore, such material contradiction and improvements ought not to have been overlooked by the trial Court while passing the impugned judgment and order of conviction.
15. Mr.Desai submitted that the trial Court has further erred in accepting that the muddamal that had been recovered by the Investigating Officer was admissible as evidence in the eye of law. The panchas of the said panchnama have turned hostile. Therefore, the said panchnama cannot be made admissible only upon the deposition of the Investigating Officer. The trial Court has further erred in concluding that the appellant had no intention to commit murder of the victim and the appellant seriously attempted at fulfilling the said intention. To prove the aspect of the intention a very weak motive has been attributed. The said motive is also not proved except bare words of the victim. In any case prior dispute between the victim and the appellant was before quite sometime and the said dispute was general and common which used to come to an end on the very day itself. Therefore, the victim has not uttered a single word regarding any quarrel which took place on the day of incident. Hence in absence of the motive, it is difficult to believe any intention on the part of the appellant and hence the conviction becomes unsustainable.
16. Mr.Desai submitted that the trial Court has further erred in concluding that as per the dying declaration, vide Ex.41, if the appellant had sprinkled kerosene on her from the kerosene stove, then she would have shouted for help and she could not have kept quite before the appellant lighted the match stick. Also, if the appellant would pour the kerosene on her, then the surface below the legs and her hair would also have burnt. But as per the deposition of Dr.Jayendra Modi, vide Ex.29, both these parts did not show burn marks. Therefore, apparently the victim had poured kerosene on herself while she was standing and due to it the surface below her legs did not show burn marks. Therefore, it was a case of suicide.
17. Mr.Desai submitted that the trial Court ought to have appreciated the fact that the appellant has two children, below the age of 10 years on the date of judgment. There is nobody to look after the children as the father is in jail and mother has passed away. The said fact was brought to the notice of the trial Court before the pronouncement of judgment. Mr.Desai therefore prayed to set aside the order of conviction and sentence recorded by the learned Judge.
18. On the other hand, Mr.N.J.Shah, learned APP has vehemently contended that at the event of death, person never speaks lie. He has argued that main incident which is disclosed before the doctor and in complaint also role of the present appellant – accused is proved and due to his overt act, intention and preparation deceased had received burns injury.
19. The learned APP has further argued that even with discrepancy in evidence of the witnesses, any oral evidence cannot be held to be fatal to the prosecution case. Overall evidence of the prosecution case is required to be considered in light of the dying declaration which is proved beyond reasonable doubt and trial Court has rightly considered relevancy of the dying declaration of deceased. Learned APP submitted that minor discrepancies occurring during the course of investigation carried out by the Investigating Officer should not be held to be fatal to the prosecution case. In support of this contention he relied upon decision of Supreme Court in the case of Sandeep Vs. State of Uttar Pradesh [2012 (6) SCC 107], more particularly on para61 of the said decision.
20. He further submitted that every variation or discrepancy in the statements of the witnesses cannot belie the case of the prosecution. In support of this contention he relied upon decision of Supreme Court in the case of Atmaram and others Vs. State of Madhya Pradesh [(2012) 5 SCC 738], and submitted that, it is a settled canon of criminal jurisprudence that every statement of the witness must be examined in its entirety and the court may not rely or reject
isolation and out of context.
21. He further submitted that there cannot be any reason to discard the dying declaration recorded by the Executive Magistrate. In support of this contention he relied upon decision of Supreme Court in the case of Abrar Vs. State of Uttar Pradesh [(2011) 2 SCC 750]. In the said case, the trial Court observed that as the two eyewitnesses had turned hostile, the case rested exclusively on the three dying declarations of the deceased in the form of the FIR, the statement of the deceased recorded by the investigating officer under Section 161 CrPC and the statement recorded by the Tahsildar. The trial Court held that as there were several discrepancies inter se in these three statements, they could not be relied upon and acquitted the accused. Against the judgment of the trial Court the State had preferred an appeal before the High Court of judicature at Allahbad, wherein the High Court reversed the judgment of the trial Court holding that the so called discrepancies were insignificant, that they could occur in any statement recorded in the Court and the discrepancy with regard to the presence or otherwise of a light which figured in one statement and did not figure in the other was of little or no consequence in the facts. The High Court then examined the dying declarations and observed that no direct and positive role had been assigned to them in the three dying declarations of the deceased and it was the single shot attributed to the accused, appellant before the Supreme Court, which had killed the deceased. After narrating observations of the High Court the Hon’ble Supreme Court observed that, there were some discrepancies in the dying declarations with regard to the presence or otherwise of a light or a torch. The Hon’ble Supreme Court observed that those were so insignificant that they call for no discussion. The Hon’ble Supreme Court observed that, it was clear from the evidence that the injured had been in great pain and if there were minor discrepancies in the three dying declarations, they were to be accepted as something normal. The Hon’ble Supreme Court held that the trial Court was clearly wrong in rendering the judgment of acquittal solely on the said specious ground.
The Hon’ble Supreme Court further held that the prompt lodging of the FIR is another circumstance in favour of the prosecution.
22. He further submitted that there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. If the Court is satisfied that dying declaration is true and voluntary conviction could be awarded on the basis of such dying declaration without any further corroboration. Merely because a dying declaration does not contain the details as to occurrence of the alleged incident, it is not to be rejected. 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.
23. Perusing the evidence in light of the above submissions, Mr.Abhinav G. Rai is P.W. No.1 at Ex.9. He has deposed in his evidence that in his presence no panchnama was carried out and only his signature was obtained. This witness has turned hostile and he was cross examined by learned APP, but nothing could be elicited in the crossexamination as a corroborative piece of evidence in support of the prosecution case. So far as the contents of panchnama of the place of offence Ex.10 is concerned, we have minutely perused the contents thereof. P.W. No.2 Ravi H. Desai, examined at Ex.12, is a star witness. According to his oral evidence, the accused, uncle of this witness, was sitting on a swing. We have tried to find out the distance between the swing and the place of offence. As per the evidence of P.W. No.2, he has disclosed that when he was present with his friends Chirag and Pragnesh at Jigar’s house and they were studying, at that time they felt smell of kerosene and they had rushed to that spot. The door of the room was closed from inside and thereafter it was opened by the deceased Rupaben. To take some preventive step when they went to take quilt and water, they saw accused husband was sitting on a swing. They had informed him that Rupaben had received burn injury. We have minutely perused the crossexamination of this witness wherein it is admitted by him that there were cordial relations between the deceased and the accused husband. As per the oral version of this witness and the contents of panchnama of the scene of offence, it is prima facie established that at the time of the visit by this witness with other friends, the door was closed which was opened by the deceased and the accused husband was not present there but he was sitting on a swing. We have minutely perused the oral evidence of the P.W. No.3 – Dr. Prakash Baldevbhai Patel, who is examined at Ex.14. In his evidence, it is disclosed by him that the deceased has narrated the case history before him which was noted by this witness. The prosecution has relied upon the case history recorded by this witness at Ex.15, complaint Ex.33, and the dying declaration recorded by the Executive Magistrate at Ex.41. In the present case, three dying declarations are recorded i.e. one by doctor, second by the police and third by the Executive Magistrate which are relevant documentary evidence for the prosecution case. As per the evidence of the P.W. No.3 who has recorded the case history at Ex.15, he has admitted in his oral evidence that he was unable to say whether the injury of the deceased was homicidal or suicidal. In his crossexamination, it is admitted by him that he had not informed the police regarding the medicolegal case. Even the police personnel who were present at the hospital were not informed by this witness. It is also admitted by this witness that so far as medicolegal cases are concerned, the police is required to be informed. It is admitted by this witness that he has not inquired whether the police was informed in connection with the case history or not. At the time of making entry by this witness at Ex.15 of the case history, he has not recorded any physical and mental condition of the deceased. As per evidence of this witness, deceased had received 94% burn injury. This witness has not disclosed as to by whom injections which are mentioned at page9 at Ex.15 were administered to the deceased. From the oral evidence of P.W. Nos.2 and 3, it appears that the doctor was an independent witness and he had no grudge against the appellant – accused and would not implicate the appellant falsely in such type of serious offence. However, overall evidence of the prosecution witnesses is required to be perused minutely when independent P.W. No.2 disclosed that at the relevant time when the door was opened by the deceased, the husband – appellant was not present in the room. So far as the question regarding presence of the accused in the room is concerned, it was disclosed by the P.W. No.2 that the accused was sitting on the swing which created some doubt about his presence in the room. It is the duty of the prosecution to explain whether that evidence of P.W. No.2 is reliable or not. It is required to be noted that, P.W. No.2 has not turned hostile. The prosecution has never made any attempt to establish that P.W. No.2 is an interested witness and due to the relations with the appellant – accused he has stated that the appellant – accused was sitting on a swing. So far as the defence of the appellant husband is concerned, it is required to be noted that the deceased was Maharastrian lady and was unable to speak Gujarati language. However, in cross examination of P.W. No.3 doctor, it is admitted by him that case history was given by the deceased in Gujarati language. For proper consideration of case history, prosecution has examined the mother of the deceased as P.W.No.9 at Ex.42 and P.W. No.7 P.S.I. Shri Tahirmiya Nizammiya Malik, examined at Ex.32, who has recorded the complaint Ex.33. As per the evidence of P.W. No.7, he had written a yadi to the Executive Magistrate to record dying declaration. As per Ex.40 the yadi written by P.W. No.7 P.S.I. Shri Tahirmiya Nizammiya Malik, through whom yadi was sent to this witness, was sent through Police Constable at 16:20 hours. As per evidence of P.W. No.9 – Smt.Meeraben Raghunath Shanker is the mother of the deceased. She has clearly admitted in her oral evidence that the accused had no grudge against the deceased and their marriage life was peaceful.
24. The prosecution has examined Executive Magistrate as P.W. No.8, M.A.Shaikh, at Ex.39. In his oral evidence he has stated that, he had received yadi from Maninagar Police Station and in that yadi he has also read endorsement of the doctor in which it was disclosed that patient was conscious. As per evidence of the Executive Magistrate P.W. No.8, it is disclosed by this witness that at 18:30 hours he had put questions to the deceased and the answers were recorded by him and he had obtained righthand thumb impression of the deceased. The dying declaration was started at 17:30 hours and was completed at 17:55 hours and then doctor’s signature was obtained. The same is produced at Ex.41. It is admitted by the Executive Magistrate that prior to recording of the dying declaration Ex.41, he did not verify about the consciousness of the deceased. It is also admitted by this witness that in the dying declaration Ex.41 at six places overwriting is made. He disclosed that it happened due to slip of pen. We have minutely perused the contents of the dying declaration at Ex.41 as well as oral evidence of the Executive Magistrate. In light of the produced on record. From the cross examination of Investigating Officer, P.W. No.10, at Ex.45, it clearly appears that there are material contradictions in the evidence of this witness. Even he has not bothered to verify the contents of the complaint. He has also not recorded the statement of any person. Even he has not inquired from P.S.I. Shri Tahirmiya Nizammiya Malik, who recorded complaint at Ex.33. It is vehemently argued by learned counsel for the accused before us and before learned trial Court that prosecution had not proved its case beyond reasonable doubt. From the oral evidence of the relevant prosecution witnesses, the charge against the husband accused that he was present at the place of scene of offence and that he had poured kerosene over the body of the deceased is not proved. In this case, the prosecution has relied upon three dying declarations made by the deceased. No doubt, a dying declaration cannot be discarded without considering the reliability of the case. In the present case, it was found from the oral evidence of P.W. No.2 that the presence of the husband – accused was proved beyond reasonable doubt, but at the time of incident, he was sitting on a swing. In the result, from the evidence of P.W. No.2, who is not declared hostile and who has not been crossexamined on the crucial aspects by the prosecution, it has been established that he is a trustworthy, reliable, independent and honest witness. We have discussed the evidence of the P.S.I. Shri Tahirmiya Nizammiya Malik and oral evidence of the Executive Magistrate. From the evidence of the mother of the deceased, it is established beyond reasonable doubt that the deceased was Maharastrian and did not usually speak Gujarati language. As per evidence of P.S.I. Shri Tahirmiya Nizammiya Malik, complaint Ex.33 is recorded in Gujarati language. It is not disclosed by this witness whether the deceased was knowing Gujarati or not. In the deposition of P.W. No.8 at Ex.39 it is admitted in cross examination by this witness that in the dying declaration at more than six places over writing is found and this witness has explained that due to slip of pen they had occurred. So far as the question of recording three dying declarations is concerned, it is established that the deceased was not speaking Gujarati language and even the Executive Magistrate did not care to verify from the doctor prior to recording dying declaration whether the deceased was in a position to speak or not and what was her mental condition. From perusal of the doctor’s evidence it is not established by the prosecution as to who had administered the injections to the deceased. The question before the Court is regarding reliability, trustworthiness and acceptability of the dying declarations. In light of the discussion of the relevant witnesses, learned Judge has believed all the three dying declarations. Where multiple dying declarations made by deceased are either contradictory or are at variance with each other to a large extent, the test of common prudence would be to first examine as to which dying declaration is corroborated by other prosecution evidence. In the present case, it was found that prosecution has not produced any evidence showing any struggle between the husband and the wife before her burning. So far as the question of homicidal or suicidal burning is concerned, it is not proved by prosecution, by any cogent evidence. As for the charge framed for the offence punishable under Section 498A of the Penal Code, we have perused entire evidence of the prosecution in light of the main ingredients of Section 498A of the Penal Code. But, in her oral evidence, mother of the deceased has specifically stated that married life of the deceased and the present appellant – accused was cordial and peaceful. According to the arguments advanced by learned counsel for the appellant, this is a case of suicidal and not homicidal death. We have perused the provisions of Sections 107 and 108 of the Penal Code. On perusing the evidence, we have not found that the deceased was instigated by the present appellant to commit suicide or there was any abetment, proved beyond reasonable doubt, by the present appellant. It is true that even the charge of Section 306 of the Penal Code is not framed against the appellant – accused. During the hearing of appeal, that issue can be considered whether prosecution has proved any offence under Section 306 of the Indian Penal Code. When we have found that relation of present appellant with the deceased wife was cordial, then the likelihood of abetment, instigation and provocation is not at all proved by the prosecution. We have also perused the defence version of the present appellant before learned Judge. It is the duty of the prosecution to prove its case beyond reasonable doubt. The defence has to prove its case on touchstone of preponderance and probabilities. In the statement recorded by the learned Judge under Section 313, the appellant has disclosed that he was not present at the place of offence and there was no grudge or illrelation with deceased wife. In connection with defence given by the appellant before the learned Judge, it is argued before us that from the evidence of the witnesses it is established that all the three dying declarations i.e. case history Ex.15, complaint Ex.33 and dying declaration Ex.39, were doubtful and contents of the same were not proved through oral evidence of the witnesses. We have found that learned Judge has convicted the present appellant for the reasons accepted by him by relying upon documentary evidence of dying declaration. We have found that all the three dying declarations are not trustworthy, reliable and acceptable. Hence, we are of the opinion that the present appellant is wrongly convicted by learned Judge for the offences punishable under Sections 302 and 498A of the Indian Penal Code.
25. In view of the foregoing reasons, the present appeal is allowed. The judgment and order of conviction dated 31.1.2006 passed by learned Additional Sessions Judge and Presiding Officer, Fast Track Court No.2, Ahmedabad City, in Sessions Case No.105 of 2004 is hereby set aside. Record and Proceedings may be sent back to the trial Court concerned. The appellant shall be released from jail forthwith, if not required to be imprisoned in connection with any other case, upon his personal bond in the sum of Rs.10,000/ with one surety of the like amount in terms of the provisions of Section 437A of the Code of Criminal Procedure. Direct service.
(D. H. WAGHELA, J.) (Z.K.SAIYED, J.) kks