IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 747 of 2006 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= VITTHALBHAI BHUPATBHAI TADVI - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance :
MR JAPAN V DAVE for Appellant MR KP RAVAL, ADDITIONAL PUBLIC PROSECUTOR for Respondent ========================================================= CORAM :
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 13/08/2012 CAV JUDGMENT (Per : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. This Criminal Appeal is at the instance of a convict and is directed against an order of conviction and sentence dated July 30, 2005 passed by the Presiding Officer, Fast Track Court No. 8, Vadodara, in Sessions Case No. 70 of 2005, thereby holding the appellant as guilty of the charge of murder under Section 302 of the Indian Penal Code [“IPC”] and sentencing him to imprisonment for life and fine of Rs. 5,000/-.
2. Being dissatisfied, the accused has come up with the present appeal.
3. The case made out by the prosecution may be summed up thus:
3.1 Monghiben, wife of Bhagabhai Maganbhai Tadvi, resident of village Vaddala, Tal. Sankheda, District-Vadodara, lodged a complaint on August 21, 2004 before the Investigating Police Sub Inspector, Bodeli Police Station that she has a daughter, named Kokila, who was married to one Vitthalbhai Bhupatbhai Tadvii, resident of Jetpurpavi Taluka four years ago. After her marriage, the said daughter stayed with her husband at her matrimonial home for about two years and thereafter, both the husband and wife started residing at village Manglod of Shinor Taluka and were doing labour work in that place. After the marriage, as her daughter could not give birth to a child, her son-in-law used to frequently beat her daughter and subject her to mental as well as physical torture and harassment. Accordingly, her daughter had come to stay with her. Along with her daughter, her son-in-law had also come to reside at the house of the complainant and he was doing labour work at the place of one Vijaybhai Patel of village Sargoi. According to the complainant, on the afternoon of August 20, 2004, her daughter and son-in-law, both left her house for going to the native place of the son-in-law in Naniunn village. Her daughter was accompanied by Dipak, the younger son of Arjun, the son of the complainant. On August 21, 2004 at about 5.00 p.m. complainant was present at her house when her daughter and son-in- law had returned back. At that time, the complainant had gone to answer the call of nature in Kotardi. After gathering some wood- sticks, the complainant returned back at 5.30 p.m. when she saw that her son-in-law, namely, Vitthalbhai Bhupatbhai Tadvi, was swiftly coming out of the house and she heard the screams of her daughter from the house. Throwing the wood-sticks in front of the house, the complainant ran inside the house and on entering the house, she saw that her daughter was lying on the ground and was burning. Witnessing the said incident, the complainant had taken a pot from the place wherein potable water was reserved and had thrown it over her daughter in order to extinguish the fire. At that time, the husband of the complainant had arrived and one Sureshbhai Ranchhodbhai had also arrived. She had removed the blouse and Chhaniya of her daughter which she was wearing and changed her dress and her husband brought a bullock-cart and took her daughter to village Vasna and from Vasna, they took her in a jeep to village Bodeli at Dholakiya Hospital. As the doctor at the hospital was not present, according to the suggestion of the nurse on duty, they took her daughter to Vadodara Hospital. On the basis of the said complaint, an offence was registered on August 21, 2004 punishable under the provisions of Section 307 and 498A of the IPC against the accused. During the course of the investigation, the Investigating Officer made arrangement for obtaining dying declaration of the victim Kokilaben, obtained statement of the witnesses who were conversant with the incident. During the treatment, Kokilaben having died after eight days, the inquest panchnama of the dead body of the deceased was carried out and post mortem of the dead body was also done. During the investigation, from the spot of the offence, sample clay as well as other samples were taken. The accused was arrested and clothes of the accused were taken into possession and thereafter, all the muddamal articles were sent to FSL for further investigation. It came out from the investigation that the accused had criminal intention of killing his wife and accordingly, poured kerosene on her body and thereafter, had put her on fire and caused her death.
3.2 The case was committed in the court of Judicial Magistrate First Class, Sankheda for the offence punishable under Sections 302 and 498A of the IPC and the case was registered as Criminal Case No. 2397 of 2004 on 27.10.2004. As the case was cognizable by the Sessions Court, the learned Judicial Magistrate First Class, Sankheda committed the case before the Sessions Court vide order dated March 4, 2005. Consequently, the case was registered as Sessions Case No. 70 of 2005.
3.3 The accused pleaded “not guilty” and claimed to be tried.
3.4 At the time of trial, the prosecution produced the following pieces of oral evidence:
3.5 The following pieces of documentary evidence were also adduced by the prosecution.
3.6 The accused was examined under Section 313 of the Code of Criminal Procedure, wherein, he denied the allegations made against him.
3.7 Learned Sessions Judge, on consideration of the materials of record, came to the conclusion that the prosecution had been able to substantiate the charge under Section 302 of the IPC. So far as allegation under Section 498A of the IPC was concerned, the learned Sessions Judge acquitted the accused of the said charge.
3.8 Consequently, the learned Sessions Judge imposed sentence of life imprisonment with further direction to pay the fine of Rs. 5,000/-.
3.9 Being dissatisfied, the accused person has come up with the present appeal.
4. Mr. Japan V. Dave, the learned advocate appearing on behalf of the accused, has strenuously contended before us that the learned Sessions Judge has committed substantial error of facts and law in convicting his client for the the offence under Section 302 of the IPC by solely relying upon the alleged dying declaration of the deceased. Mr. Dave contends that having regard to the extent of burn injuries sustained by the deceased, the learned Sessions Judge ought to have held that the deceased was unconscious and was not in a position to give any dying declaration. Mr. Dave further contends that it appears that the Executive Magistrate, at the time of recording dying declaration, did not even care to take permission of the concerned doctor under whom the patient was undergoing treatment. Mr. Dave submits that even the fact that patient was conscious was recorded about three hours prior to taking dying declaration and the endorsement of the doctor has not been proved by the doctor concerned.
4.1 Mr. Dave contends that in the case before us, there is no evidence to show that on the date of the incident, the accused person really came back from the house of his father-in-law as stated by the complainant. Mr. Dave points out that both the complainant and her husband turned hostile and in such circumstances, the learned Sessions Judge should not have relied upon the alleged dying declaration of the deceased.
4.2 Mr. Dave further contends that even the requirement of taking dying declaration was not complied with and at the same time, even if it is assumed for the sake of argument that such dying declaration was genuine one, the learned Sessions Judge should not have relied upon such statement of the deceased in view of the fact that admittedly the deceased was staying away from her husband in her paternal house. Mr. Dave contends that the prosecution failed to prove that the accused person used to stay with the deceased in her paternal house when the case of the prosecution itself is that the wife being harassed by her husband, came back to her father's place. Mr. Dave further contends that the learned Sessions Judge having acquitted his client of the charges under Section 498A of the IPC, the case of the prosecution that the deceased was being harassed by the husband as she was incapable of bearing a child is not tenable and the consequent allegation of murder on that ground was baseless.
5. Mr. Dave, thus, prays for setting aside the order of conviction and sentence.
6. Mr. K.P. Raval, learned Additional Public Prosecutor has, on the other hand, opposed the aforesaid contention of Mr. Dave and has contended that the learned Sessions Judge having relied upon the dying declaration of the deceased taken by the Executive Magistrate, we should not disbelieve such dying declaration. Mr. Raval further submits that the Executive Magistrate was impartial witness and no suggestion had been given to him that with malafide intention he recorded wrong statement as a genuine dying declaration. Mr. Raval further contends that in case before us it has been well established that the victim died eight days after making dying declaration and as such, the contention of Mr. Dave that the deceased was not in a position to understand the question put to her by the Executive Magistrate, is not tenable. Mr. Raval, therefore, prays for affirming the order of the learned Sessions Judge and dismissal of the appeal.
7. Therefore, the question that arises for determination in this appeal is whether on the basis of the evidence on record, the learned Sessions Judge was justified in holding the accused guilty for the offence of murder notwithstanding the fact that he acquitted him of the charges under Section 498A of the IPC which was the alleged reason and motive of murder.
8. In order to ascertain whether the alleged dying declaration given by the deceased before the Executive Magistrate is sufficient to prove the guilt of the accused, we propose to first consider Exh. 29, the dying declaration recorded by the Executive Magistrate. It appears that the dying declaration was started at 4.10 a.m. on August 22, 2004 at S.S.G. Hospital, Vadodara in Room No. 23. The victim, in answer to the questions put by the Executive Magistrate stated that she was aged 22 years but she could not remember the date of birth. She further stated that she was then residing at her paternal home in village Vaddala, Tal. Sankheda, Dist.Vadodara and that she was doing labour work. She further stated that she had confrontation with her husband and on August 21, 2004 at 6.00 p.m., he poured kerosene upon her and thereafter, lit a matchstick and left the house, and at the time of the incident, there was no one present. She further stated that her husband was responsible for the incident and she did not want to say anything further. It appears that during the recording of dying declaration, there was no one present except the victim and the Executive Magistrate, and the procedure for taking dying declaration was completed at 4.30 hrs.
9. Maganbhai Mahijibhai Makwana is the Executive Magistrate who was examined as P.W. 11. In his evidence, he has stated that on August 22, 2004, he was serving as Mamlatdar, Entertainment Tax, Vadodara when he received a letter from the police wherein he was informed that an attempt had been made by the husband of one Kokilaben to burn her by pouring kerosene on her and that she was under treatment and, therefore, a dying declaration was required to be taken. He has further stated that after entering the hospital, he went to the Burns Ward, wherein, in bed no. 23, the injured victim Kokilaben was lying. According to his evidence, Kokilaben was lying in the bed and had sustained burns. On his inquiring from Kokilaben, she was able to speak. The said witness has further stated that he was satisfied that Kokilaben was fit to give her statement. He has further stated that at the time of taking statement of Kokilaben, he did not allow anyone else to remain present near her bed and Kokilaben was alone. The said witness has repeated the statements which have been stated in the dying declaration. The said witness has proved his own handwriting and signature and also the thumb impression of Kokilaben. It may be mentioned here that when the said dying declaration was marked as exhibit, an objection was raised by the learned advocate appearing for the defence that the thumb impression of a person who has burn injury cannot be taken and, therefore, the document should not be exhibited. The learned Sessions Judge, however, overruled the objection saying that at that stage, the court was not analyzing the evidence or giving its opinion and thus, the said document was exhibited. In the cross-examination, the Executive Magistrate stated that at the time of receiving the letter requesting him to record the dying declaration, he also received Exh. 28 which is the letter which contains the endorsement of the doctor to the effect that the victim was fit to give statement. Such endorsement of the doctor was apparently given at 1.55 hrs., whereas this witness recorded the dying declaration at 4.10 hrs. The said witness has further stated that at the time of recording dying declaration, he did not obtain any opinion from the doctor on duty as to the condition of the patient. He denied the suggestion that in the dying declaration, he had obtained the impression of the toe of Kokilaben instead of the thumb impression.
10. P.W. 2 Monghiben Bhagabhai Tadvi is the mother of the deceased. She is also the complainant in this case. According to her evidence, after the marriage of her daughter, she had gone to reside with her husband at her matrimonial home and used to come to meet her during the festivals and on other occasions and she herself also used to go and meet her daughter and at that time, her daughter used to tell before her that she had no complaints about her matrimonial life. According to her evidence, on the date of the incident, her daughter was at her house; she had gone out of the house and when she returned, she saw that her daughter was burning. She has stated in her evidence that her daughter had burnt herself and when she came back, she did not see anyone coming out of the house. As her daughter was burning, she poured water upon her in order to extinguish the fire and started shouting for help. On that day, her husband had gone to work and as she sent a message for him, he had come back later. She has further stated in her evidence that she herself had changed the clothes of her daughter which were kept by her in the compound. According to her evidence, she had taken her daughter in the bullock-cart of one Kiranbhai to Vasna and from Vasna, she was taken to Bodeli Hospital, but as the doctor was not available in the said hospital, she had taken her daughter to Vadodara Govt. Hospital, where, she had died after ten days. She has further stated in her evidence that she had given her complaint to the police. She has denied that when she returned back to her house, at that time, the accused was coming out of the house. She has further stated that her daughter did not tell her anything about the incident.
11. In view of such statement, she was declared hostile and the prosecution cross-examined her. After the prosecution cross-examined her, it appears that the accused also cross-examined her and in her cross-examination, she has stated that when the incident took place, at that time, the accused was residing at his own house in his village.
12. P.W. 3 Bhagabhai Maganbhai Tadvi is the father of the deceased.
He was also declared hostile as in his examination-in-chief, he did not support the prosecution. He was cross-examined by the prosecution and after such cross-examination was over, he was further cross- examined by the accused and in such cross-examination, he admitted that married life of her daughter and son-in-law was going on well and that there was no confrontation or quarrel between them. He has further stated that on account of burns, his daughter was under severe shock, as a result, she was not able to speak and could not speak to him also.
13. By relying upon the aforesaid statement of the parents of the deceased, Mr. Dave, the learned advocate appearing on behalf of the appellant strenuously contended that we should not place any reliance upon the dying declaration of the victim because of the admission of the father of the victim that the victim was not even in a position to talk and thus, the statement made in the dying declaration should be disbelieved. Consequently, according to Mr. Dave, the evidence of the Executive Magistrate should be disbelieved and we should not take into consideration the alleged statement made in the dying declaration.
14. There is no dispute that apart from the dying declaration, there is no other evidence placed by the prosecution showing that the accused was even present in the house of the victim at the time of occurrence.
15. If we accept the prosecution case that the accused used to ill- treat his wife as she was unable to give birth to a child and for that reason she was compelled to come back to her paternal home, in such a situation, the allegation that both of them were residing in the paternal house of the deceased cannot be accepted. It is absurd to suggest that the husband who used to ill-treat his wife will come back to his wife's house and will stay as domesticated son-in-law along with her.
16. However, important question that arises for determination in this appeal is that as to whether we can rely upon the evidence of the parents of the deceased who were declared hostile and after being so declared hostile, their evidence in the cross-examination of the accused can be taken into consideration.
17. As pointed out by the Supreme Court in the case of Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, reported in AIR 1964 SC 1563, the provision contained in Section 154 of the Evidence Act confers a discretionary power on the court to permit a person who calls a witness to put any question to him which can be put in the cross-examination by the adverse party. According to the Supreme Court, Section 152 does not in terms, or by necessary implication, confine the exercise of power of the Court before examination-in-chief is concluded or at any particular stage of examination of the witness. It is, according to Supreme Court, wide in scope and the discretion is entirely left to the court to exercise the power when the circumstances demand. The Supreme Court further pointed out that to confine such power to the stage of examination-in- chief is to make it ineffective in practice. A clever witness, in his examination-in-chief faithfully conforms to what he stated earlier to the police or in the committing court, but in the cross-examination, introduces statements in a subtle way contradicting in effect what he stated in the examination-in-chief. If this design is obvious, according to the Supreme Court, the court, during his cross-examination or re- examination can permit the person calling him as witness to put question to him which might be put in cross-examination by the adverse party. In that case before the Supreme Court, some of the witnesses faithfully repeated that they had stated before the police in examination-in-chief but in cross-examination they came out with the story of insanity of the accused. The court, at the request of the advocate of the prosecution permitted him to re-examine the said witness. But after such re-examination, according to the Supreme Court, the accused must be given opportunity to cross-examine the witness relating to the statement made in re-examination.
18. By applying the above principle, we find that once a witness has been declared hostile and the prosecution has been permitted to cross-examine, law requires that the accused must be given opportunity to cross-examine said hostile witness in respect of the entire statement made in examination-in-chief as well as in the cross-examination by the prosecution.
19. Once the State has taken the risk of examining a witness as prosecution witness, by merely declaring him as hostile witness, it cannot avoid the effect of the statement made by such witness. It is for the court to consider the effect of the evidence given by such a person in the background of his conduct.
20. In case before us, even if we do not take into consideration the admission made by the parents of the deceased that when the deceased was brought in the hospital she was not in a position to talk, we find that the fact remains that there is no evidence adduced by any witness that the accused was staying at the paternal house of the deceased on the date of the incident along with his wife.
21. It is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the IPC. This general burden never shifts and it always rests on the prosecution.
22. Therefore, the point now remains is whether we should believe the dying declaration given by the deceased and whether we should also accept the statement of the Executive Magistrate that the deceased was capable of understanding and answering the questions put to her at the stage of giving dying declaration.
23. It appears from the evidence given by both the parents that the deceased was not in a position to speak when she was brought in the hospital and no suggestion has been given to either P.W.2 or P.W.3 that she was in a position to speak or to give reply. In such circumstances, in our opinion, the accused should be given benefit of doubt as to the state of health of the deceased at the time of the dying declaration.
24. So far as the dying declaration is concerned, if we accept the prosecution case that the husband used to torture and for that reason, the deceased was staying away from her husband at her paternal house, it is apparent that she had been nurturing a grudge against her husband for long time and while committing suicide, she might try to implicate him so as to make his life miserable.
25. In the case of P. Mani v. State of T.N., reported in [2006] 3 SCC 161, the Supreme Court, while considering the question as to whether dying declaration does or does not reveal the truth, has pointed out that if the deceased had been nurturing a grudge against her husband, it was possible that while committing suicide, she might try to implicate him so as to make his life miserable and in the offence under Section 302 of the IPC, presumption in terms of Section 113A of the Evidence Act is not available.
26. We also find substance in the contention of Mr. Dave for the appellant that if the prosecution case is that the accused used to torture the victim as she was incapable of bearing a child, it is absurd to suggest that in such circumstances, both of them will come back to stay in the paternal house of the wife. Moreover, the case of torture on the above allegation is also not proved and it appears that the learned Sessions Judge has acquitted the accused of the charge under Section 498A of the I.P.C. and the State has not preferred any appeal against such order of acquittal.
27. We, therefore, find that in the facts of the present case, when there are conflicting evidences regarding the state of health of the victim at the time of the dying declaration, it is very difficult to rely upon such dying declaration. Moreover, we also find that in the dying declaration the fact that the accused used to torture the victim on the allegation that she was incapable of bearing a child, has not been stated.
28. It appears from the records that after the Executive Magistrate recorded the Dying Declaration between 2.10 and 4.10 hours on 22nd August 2004, the Investigating Officer has taken further statements of the victim being Exh. 40. Those statements are elaborate one, which we propose to narrate. There is, however, no signature or thumb impression of the victim nor is there any signature of any other witnesses.
29. In the said statements, it is stated that the deceased was married to the appellant, a resident of village Nani Unn and after her marriage, she stayed with her husband for a period of two years at her matrimonial house. Thereafter, both husband and wife were residing at Ringdod village of Shinor Taluka and were doing labour work. In spite of the fact that they were married for about four years, she did not give birth to a child and hence, her husband often used to beat her and gave mental as well as physical torture, tyranny and taunts. According to the statements, since her father and mother were residing alone, she and her husband were residing with them since last two months, and her husband used to go for labour work at the place of Vijaybhai Patel of village Sargoi.
30. According to this statement, on account of heavy rainfall, there was flood in several rivers wherein her matrimonial house situated at village Nani Unn had fallen and the river Bharda passing near to this village was also flooded. She and her husband went two to three times to meet her in-laws. A day before the incident, her husband told her that he would be going to his father's house to meet his parents and would return in the evening, but he did not return in the evening. On the next morning, she went to her matrimonial home taking her nephew, Dipak, with her, and asked her husband to come back. Thereafter, both she and her husband along with her nephew returned from Nani Unn village to Vaddala on the bicycle of her husband, and at that time, there was altercation between them, and when she asked him as to why he did not return, he grew annoyed and angry upon her and started beating her and had given her two to four blows on the way itself. They reached their house at Vaddala at about 5.00 PM. At that time, her mother went to answer the nature’s call. She started peeling the husk from garlic and was crushing the garlic in the kitchen and at that time, she asked her husband to go to the place of Patel for drawing milk. Her husband told her that he is going but after saying so, he suddenly became angry and told her that he was caring for her since last four years, and in spite of that, she was unable to give any child to him and she was barren and she should not ask him to go to work for drawing milk. Thereafter, he took out a small plastic kerosene container kept near the stove, poured the kerosene upon her, lit a matchstick and had thrown the burning matchstick upon her. Thereafter, he swiftly ran out of the house from the front door of the house. According to this statement, she started screaming for help. Hence her mother came inside and poured water from the water pot kept on the place wherein potable water was stored and extinguished the fire. Meanwhile, Gangaben and others residing in neighborhood also came. Her mother and Gangaben removed the blouse and the chaniya that she wore at that time and gave her other clothes. According to this statement, she narrated the incident to them. She has also described how thereafter she was brought to the hospital.
31. It appears that there is no witness to such recording of Dying Declaration. The Investigating Officer appeared as PW.13. In paragraph 2 of the examination-in-chief, he has stated that on 22nd August 2004, he had taken the statement of the victim in the Burns Ward of SSG Hospital, Vadodara. Such statement was written by him in the language of Kokilaben. In his cross-examination, at paragraph 6, he has admitted that at the time of taking statement of the victim, he had not obtained certificate as to whether the victim was fit enough for giving her statement. He has denied the suggestion that at the time of taking the statement of the victim, Glucose bottle was being dripped to her. He has further admitted in his evidence that the arrest panchnama of the accused and the panchnama for seizure of the clothes of the accused were prepared in his presence, and odour of Kerosene was not found from the clothes of the accused and there was no presence of kerosene thereupon.
32. In our opinion, it is very difficult to rely upon such alleged statements recorded by the Investigating Officer when there is no presence of any other witness nor is there any thumb impression of the victim. We have already pointed out that both the parents have stated that when the deceased was brought in the hospital, she was not in a position to speak. What is the exact time of taking such statement is not indicated from the documents and the Investigating Officer has also not stated in his evidence the time when such statement was taken.
33. For the selfsame reason for not relying upon the Dying Declaration recorded by the Executive Magistrate, in our opinion, this statement recorded by the Investigating Officer also cannot be believed, particularly when the time of recording the said Dying Declaration is also not indicated in the document and there is no other witness of taking such declaration.
34. On consideration of the entire materials on record, we, therefore, find that the prosecution has failed to prove that it was the accused who was staying in the paternal house of the deceased on the date of the incident or that he poured kerosene on her body and set her on fire.
35. We, therefore, allow the appeal and set aside the judgment and order dated July 30, 2005 passed by the learned Presiding Officer, Fast Track Court No. 8, Vadodara, in Sessions Case No. 70 of 2005 convicting and sentencing the appellant. The appellant is acquitted of the charge levelled against him and is ordered to be set at liberty forthwith, if not required in any other criminal case. Fine, if paid, be refunded to the accused.
[BHASKAR BHATTACHARYA, C.J.]
[J.B.PARDIWALA, J.]
pirzada/-