Supreme Court of India
PETITIONER:KOLI CHUNILAL SAVJI & ANR.
Vs.
RESPONDENT:STATE OF GUJARAT
DATE OF JUDGMENT: 29/09/1999
BENCH:G.B.Pattanaik, N.Santosh Hedge, M.Srinivasan
JUDGMENT:PATTANAIK, J.
These two appeals arise out of Judgment dated
21/24.6.1996 of the High Court of Gujarat at Ahmedabad in
Criminal Appeal Nos. 236 and 105 of 1989 and are being
disposed of by this common Judgment. The two appellants
were tried for having committed an offence under Section
302/34 IPC on the allegation that on 28.6.84 at 4 A.M.,
while deceased Dhanuben was sleeping on her bed, the two
accused persons namely her husband and mother-in-law poured
kerosene and set fire with match box. Along with the
deceased, her son Ajay was also there and both, the deceased
and Ajay were burnt. They were taken to the hospital for
treatment. In the hospital, Police recorded the statement
of Dhanuben which was treated as F.I.R. and then after
registering the case, investigation started. In the
hospital, both Dhanuben and her son Ajay died and as such
the accused persons stood charged for offence under Sections
498A and 302/34 of the IPC. Apart from the statement by
deceased Dhanuben to PW 14, which was treated as F.I.R., a
Magistrate also recorded her statement which was treated as
a dying declaration. On scrutiny of the prosecution
evidence, the learned Sessions Judge did not rely upon the
dying declaration made by the deceased Dhanuben and in the
absence of any other evidence to connect the accused
appellants with the murder of the deceased, acquitted them
of the charge under Section 302/34 IPC. The learned
Sessions Judge however came to the conclusion that the
offence under Section 498A has been established beyond
reasonable doubt and as such convicted them under the said
Section and sentenced them to rigorous imprisonment for two
years and imposed a penalty of Rs.250/-, in default, further
imprisonment for two months. The State of Gujarat preferred
an appeal against the acquittal of the accused persons of
the charge under Section 302/34 IPC and the accused persons
preferred appeal against their conviction under Section
498A. The High Court by the impugned Judgment set aside the
order of acquittal, relying upon the two dying declarations
Exh. 45 and Exh. 41 and convicted the appellants of the
charge under Section 302/34 IPC and States appeal was
allowed. The appeal filed by the accused persons, assailing
their conviction under Section 498A however stood dismissed
and the conviction under Section 498A and the sentence
passed thereunder was maintained. It may be stated that
while admitting the appeal of the accused persons against
their conviction under Section 498A, the High Court had suo
motu issued notice as to why the sentence imposed for the
offence punishable under Section 498A should not be
enhanced. But while disposing of the criminal appeals, the
High Court did not think it proper to enhance the sentence
and accordingly notice of enhancement stood discharged.
On the basis of the post-mortem report conducted on
the dead bodies of Dhanuben and her son Ajay and the
evidence of doctor PW9, who conducted the autopsy over the
dead bodies, the conclusion is irresistible that both the
persons died on account of burn injuries but the defence
however raised a contention that the two persons died on
account of suicide and the house was set fire by the
deceased herself. The prosecution witnesses to whom
deceased had made oral dying declaration, implicating the
accused persons, did not support the prosecution during
trial and, therefore, with the permission of the Court the
Public Prosecutor cross- examined them. The High Court
accordingly, placed no reliance on their testimony. The
High Court however examined the two dying declarations
namely Exh.45, recorded by the Sub-Inspector PW14 and the
dying declaration Exh.41, recorded by the Magistrate PW12
and came to the conclusion that both these dying
declarations are truthful and voluntarily made and,
therefore, can safely form the basis of conviction of the
accused persons under Section 302/34 IPC. With the
aforesaid conclusion the order of acquittal passed by the
learned Sessions Judge of the charge under Section 302/34
was set aside and the accused appellants were convicted of
the said charge and were sentenced to imprisonment for life.
The High Court also relying upon the dying declaration and
other materials, further came to the conclusion that the
prosecution case, so far as the charge under Section 498A
IPC is concerned, has been proved beyond reasonable doubt
and, therefore, upheld the conviction and sentence passed
thereunder by the learned Sessions Judge.
Mr. Keshwani, the learned counsel appearing for the
appellants argued with vehemence that the two dying
declarations cannot be relied upon inasmuch as the doctor
was not present while the dying declaration was recorded by
the Magistrate and further, there is no endorsement by the
doctor, indicating the mental condition of the deceased to
the effect that she was in a fit condition to make the
statement. The learned counsel also further urged that the
doctor himself has not been examined in this case which
makes the position worse. Mr. Keshwani also made a
submission that the deceased was surrounded by her own
relations before the dying declaration was recorded by the
Magistrate and as such had sufficient opportunity to be
tutored and consequently the dying declaration recorded by
the Magistrate becomes vitiated. Mr. Keshwani also
submitted that the incident having taken place at 4 A.M.
and the dying declaration having been recorded by the
Magistrate at 9 A.M., five hours after the occurrence, there
has been gross delay which makes the dying declaration
doubtful and as such should not have been accepted. Mr.
Keshwani lastly submitted that the learned Sessions Judge
having recorded an order of acquittal, the same should not
have been interfered with by the High Court without
justifiable reasons and on this score also the conviction of
the appellants under Section 302/34 IPC cannot be sustained.
The learned counsel appearing for the respondent
State, on the other hand submitted that the dying
declaration which has been relied upon by the High Court in
the facts and circumstances, has been rightly held to be
truthful and voluntary one and, therefore, in law, can form
the sole basis of conviction. She also contended that
though endorsement of the doctor and presence of the doctor
is ordinarily looked for but merely on that score the dying
declaration recorded by the Magistrate cannot be held to be
an untruthful one. Besides, the learned counsel submitted
that the doctor did make an entry in the Police yadi,
indicating that the deceased was in a fit condition to make
any statement and it is he, who took the Magistrate to the
deceased and non-endorsement by the doctor on the statement
recorded by the Magistrate cannot be held to be fatal nor
can any doubt arise on that score. The learned counsel
further contended that the power of the High Court against
an order of acquittal is the same as against an order of
conviction and while setting aside an order of acquittal, it
is necessary for the Appellate Court to look at the
reasoning given by the trial Judge and be satisfied whether
those reasoning are just and proper or not. The reasoning
given by the learned Sessions Judge to discard the two dying
declarations having been found by the High Court to be
wholly unreasonable and, therefore, the High Court was fully
entitled to interfere with the conclusion of the learned
Sessions Judge and no infirmity can be found out on that
score.
Coming to the affirmation of conviction under Section
498A, while Mr. Keshwani, appearing for the accused
appellants submitted that on this scanty evidence, the
Courts could not have convicted the accused persons of the
said charges, the learned counsel for the respondent
submitted that both the Courts have analysed the evidence
fully and having found that the charge under Section 498A
IPC has been proved beyond reasonable doubt, question of
interfering with the said conviction does not arise.
In view of the rival submissions made at the Bar, two
questions really arise for our consideration. (1) Whether
the two dying declarations can be held to be true and
voluntary and can be relied upon or can be excluded from
consideration for the infirmities pointed out by Mr.
Keshwani, appearing for the appellants. (2) Whether the
High Court exceeded its jurisdiction in interfering with the
order of acquittal, recorded by the learned Sessions Judge.
Coming to the first question, the answer to the same
would depend upon the correctness of the submission of Mr.
Keshwani, that in the absence of doctor while recording the
dying declaration, the said declaration loses its value and
cannot be accepted. Mr. Keshwani in this connection relies
upon the decision of this Court in the case of Maniram vs.
State of Madhya Pradesh, AIR 1994 SC 840. In the aforesaid
case, no doubt this Court has held that when the declarant
was in the hospital itself, it was the duty of the person
who recorded the dying declaration to do so in the presence
of the doctor and after duly being certified by the doctor
that the declarant was conscious and in senses and was in a
fit condition to make the declaration. In the said case the
Court also thought it unsafe to rely upon the dying
declaration on account of aforesaid infirmity and interfered
with the Judgment of the High Court. But the aforesaid
requirements are mere a rule of prudence and the ultimate
test is whether the dying declaration can be held to be a
truthful one and voluntarily given. It is no doubt true
that before recording the declaration, the concerned officer
must find that the declarant was in a fit condition to make
the statement in question. In Ravi Chander and Ors. vs.
State of Punjab, 1998 (9) SCC 303, this Court has held that
for not examining the doctor, the dying declaration recorded
by the Executive Magistrate and the dying declaration orally
made need not be doubted. The Court further observed that
the Executive Magistrate is a disinterested witness and is a
responsible officer and there is no circumstance or material
on record to suspect that the Executive Magistrate had any
animus against the accused or in any way interested in
fabricating the dying declaration and, therefore, the
question of genuineness of the dying declaration recorded by
the Executive Magistrate to be doubted does not arise. In
the case of Harjit Kaur vs. State of Punjab 1994(4) SCALE
447, this Court has examined the same question and held:
..As regards the condition of Parminder Kaur, the
witness has stated that he had first ascertained from the
doctor whether she was in a fit condition to make a
statement and obtained an endorsement to that effect.
Merely because that endorsement was made not on the Dying
Declaration itself but on the application, that would not
render the Dying Declaration suspicious in any manner.
In view of the aforesaid decisions of this Court, we
are unable to accept the submission of Mr. Keshwani that
the two dying declarations cannot be relied upon as the
doctor has not been examined and the doctor has not made any
endorsement on the dying declaration. With regard to the
condition of the deceased, the Magistrate who recorded the
dying declaration has been examined as a witness. She has
categorically stated in her evidence that as soon as she
reached the hospital in the Surgical Ward of Dr. Shukla,
she told the doctor on duty that she is required to take the
statement of Dhanuben and she showed the doctor the Police
yadi. The doctor then introduced her to Dhanuben and when
she asked the doctor about the condition of Dhanuben, the
said doctor categorically stated that Dhanuben was in a
conscious condition. It further appears from her evidence
that though there has been no endorsement on the dying
declaration recorded by the Magistrate with regard to the
condition of the patient but there has been an endorsement
on Police yadi, indicating that Dhanuben was fully
conscious. In view of the aforesaid evidence of the
Magistrate and in view of the endorsement of doctor on the
Police yadi and no reason having been ascribed as to why the
Magistrate would try to help the prosecution, we see no
justification in the comments of Mr. Keshwani that the
dying declaration should not be relied upon in the absence
of the endorsement of the doctor thereon. In this
particular case, the police also took the statement of the
deceased which was treated as F.I.R., and the same can be
treated as dying declaration. The two dying declarations
made by the deceased at two different point of time to two
different persons, corroborate each other and there is no
inconsistency in those two declarations made. In this view
of the matter, we have no hesitation to come to the
conclusion that the two dying declarations made are truthful
and voluntary ones and can be relied upon by the prosecution
in bringing home the charge against the accused persons and
the prosecution case must be held to have been established
beyond reasonable doubt. Consequently, we have no
hesitation in rejecting the first submission of Mr.
Keshwani. In this connection, it may be appropriate for us
to notice an ancillary argument of Mr. Keshwani that there
has been an inordinate delay on the part of the Magistrate
to record the dying declaration and, therefore, the same
should not be accepted. As we find from the records, the
incident took place at 4 A.M. and the Magistrate recorded
the dying declaration at 9 A.M., in our opinion, it cannot
be said that there has been an inordinate delay in recording
the statement of the deceased. Mr. Keshwani had also urged
that when the Magistrate recorded the dying declaration, the
deceased had been surrounded by her relations and,
therefore, it can be assumed that the deceased had the
opportunity of being tutored. But we fail to understand how
this argument is advanced inasmuch as there is no iota of
evidence that by the time the Executive Magistrate went, the
deceased was surrounded by any of her relations. No doubt
the Magistrate herself has said that three or four persons
were there near the deceased whom she asked to go out but
that they were the relations of the deceased, there is no
material on record. We, therefore, have no hesitation to
reject the said submission of Mr. Keshwani.
Coming now to the second question, the law is well
settled that the power of the High Court while sitting in
appeal against an order of acquittal is the same, as the
power while sitting in appeal against the conviction and the
High Court, therefore would be fully entitled to
re-appreciate the materials on record and in coming to its
own conclusion. The only compulsion on the part of the
Appellate Court is to bear in mind the reasons advanced by
the learned Sessions Judge, while acquitting the accused and
indicate as to why those reasons cannot be accepted. This
being the parameter for exercise of power while entertaining
an appeal against the order of acquittal and in view of our
conclusion and finding that the two dying declarations were
truthful ones and voluntarily made, we see no infirmity with
the impugned judgment of the High Court in setting aside an
order of acquittal. On going through the Judgment of the
Sessions Judge, we find that the learned Sessions Judge
erroneously excluded the two dying declarations from purview
of consideration and therefore, the High Court was justified
in interfering with the order of acquittal. If the order of
acquittal is based upon the grounds not sustainable, the
Appellate Court would be justified in interfering with the
said order of acquittal. Consequently, we are of the
opinion that in the facts and circumstances of the present
case, the High Court was fully justified in interfering with
the order of acquittal recorded by the Sessions Judge and as
such the conviction of the appellant under Section 302/34
IPC is unassailable. Coming to the question of conviction
under Section 498A IPC, as has been stated earlier, the
learned Sessions Judge also convicted the appellant of the
said charge and the High Court on re-appreciation, has
affirmed the conviction and sentence passed thereunder and
nothing has been brought to our notice to take a contrary
view. In the net result, therefore, these appeals fail and
are dismissed.