BABUBHAI BHIMABHAI BOKHIRIA Vs STATE OF GUJARAT .
Bench: CHANDRAMAULI KR. PRASAD,PINAKI CHANDRA GHOSE
Case number: Crl.A. No.-000735-000735 / 2014
Diary number: 36683 / 2008
Advocates: ANIRUDDHA P. MAYEE Vs
EJAZ MAQBOOL
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REPORTABLE IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.735 OF 2014 (@SPECIAL LEAVE PETITION (CRL.) No.9184 of 2008)
BABUBHAI BHIMABHAI BOKHIRIA & ANR. ..... APPELLANTS
VERSUS
STATE OF GUJARAT & ORS. .... RESPONDENTS
J U D G M E N T
Chandramauli Kr. Prasad
Before we proceed to consider the case,
we must remind ourselves the maxim “judex
damnatur cum nocens absolvitur” which means
that a Judge is condemned when guilty person
escapes punishment. But, at the same time, we
cannot forget that credibility of the justice
delivery system comes under severe strain when
a person is put on trial only for acquittal.
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By Order dated 8th December, 2011, Veja
Prabhat Bhutia was added as petitioner no. 2.
He was an accused in the case and his
grievance was that due to pendency of the
present petition filed by petitioner Babubhai
Bhimabhai Bokhiria, his trial has been stayed
and he is unnecessarily rotting in jail. This
judgment shall, therefore, will have no
bearing on him and the expression
“petitioner/appellant” in this judgment would
mean petitioner no.1/appellant no.1 Babubhai
Bhimabhai Bokhiria.
Shorn of unnecessary details, facts
giving rise to the present petition are that
one Mulubhai Gigabhai Modhvadiya was murdered
on 16th of November, 2005 and for that a case
was registered at Kalambaug Police Station,
Porbandar, under Section 302, 201, 34, 120B,
465, 468 and 471 of the Indian Penal Code and
Section 25 of the Arms Act. Police after
usual investigation submitted the charge-sheet
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and the case was ultimately committed for
trial to the Court of Session. When the trial
was so pending, the wife of the deceased filed
an application for further investigation under
Section 173(8) of the Code of Criminal
Procedure (hereinafter referred to as ‘the
Code’), alleging petitioner’s complicity in
the crime, inter alia, stating that the
petitioner was a business rival of the
deceased whereas one of the main accused is
his business partner with whom he conspired to
kill the deceased. It was alleged that
petitioner was a Minister earlier from the
party which was in power in the State and
therefore, he was let off during
investigation. It was also pointed out that a
letter written almost a year ago by the
deceased was recovered from his purse in which
it was stated that in the event of his death,
the petitioner shall be held responsible as he
intended to kill him. In reply to the said
application, the Investigating Officer filed
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his affidavit stating therein that during the
course of investigation, nobody supported the
plea of the wife that the deceased was
apprehending any threat from the petitioner or
for that matter, any other person. In another
affidavit filed by the Investigating Officer,
a firm stand was taken that no material had
surfaced to show the complicity of the
petitioner in the offence. It was pointed out
by the Investigating Officer that the deceased
filed an application for arms licence and in
that application also he did not disclose any
threat or apprehension to his life from any
person, including the petitioner herein.
Notwithstanding the aforesaid affidavit of the
Investigating Officer, the Sessions Judge
directed for further investigation. In the
light of the aforesaid, the investigating
agency submitted further report stating
therein that the call records of the period
immediately preceding the death of the
deceased do not show any nexus between him and
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the petitioner and the deceased did not have
any threat from the petitioner. In this way,
the police did not find the complicity of the
petitioner in the crime.
During the course of trial of other
accused, 134 witnesses were examined and at
that stage, an application was filed by the
son of the deceased praying for arraigning the
petitioner as an accused in exercise of power
under Section 319 of the Code. Said
application was allowed by the learned
Sessions Judge on its finding that prima facie
strong evidence exists to summon the
petitioner as the letter recovered from the
deceased incriminated him. It was also
observed that the veracity of the letter
recovered from the deceased was established by
two witnesses who confirmed that the letter
was in the handwriting of the deceased.
Aggrieved by the aforesaid order, the
petitioner preferred Special Criminal
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Application No. 638 of 2008 before the High
Court of Gujarat. The High Court by its order
dated 11th December, 2008 dismissed the said
application inter alia observing as follows:
“7. In view of the material placed before the Court, selected by the parties, and in absence of comprehensive and panoramic view of the entire evidence led before the Court in respect of the heinous crime wherein Section 120-B of I.P.C. is clearly alleged, it would be hazardous to record an opinion different from the opinion formed by the Court conducting the case. It is emphasized in the most recent judgment dated 07.11.2008 of the Supreme Court in Hardeep Singh v. State of Punjab [Criminal Appeal No. 1750-1751/2008], after reference to most of the previous judgments on the issue and reiterating the ration in Bholu Ram v. State of Punjab (2008) 9 SCC 140, that the primary object underlying Section 319 is that the whole case against all the accused should be tried and disposed of not only expeditiously but also simultaneously. Justice and convenience both require that cognizance against the newly added accused should be taken in the same case and in the same manner as against the original accused. In view of the principles laid down by the Supreme Court as adumbrated hereinabove and in view of the
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further guidelines called for by the recent referring judgment, it would be improper to interfere with the impugned order, particularly when even the State and the prosecution has supported the application at Ex. 225 below which the impugned order was made.”
It is in these circumstances, the
petitioner has preferred this special leave
petition and assails the aforesaid order.
Leave granted.
Before we proceed to deal with the
evidence against the appellant and address
whether in light of the evidence available,
power under Section 319 of the Code was validly
exercised, it would be expedient to understand
the position of law in this regard. The issue
regarding the scope and extent of powers of the
court to arraign any person as an accused during
the course of inquiry or trial in exercise of
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power under Section 319 of the Code has been set
at rest by a Constitution Bench of this court in
the case of Hardeep Singh v. State of Punjab, 2014 (1) SCALE 241. On a review of the authorities, this Court summarised the legal
position in the following words:
“98. Power under Section 319 Cr.P.C. is a discretionary and an extra-ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. 99. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross- Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the
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evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C……..”
Section 319 of the Code confers power on
the trial court to find out whether a person
who ought to have been added as an accused has
erroneously been omitted or has deliberately
been excluded by the investigating agency and
that satisfaction has to be arrived at on the
basis of the evidence so led during the trial.
On the degree of satisfaction for invoking
power under Section 319 of the Code, this Court
observed that though the test of prima facie
case being made out is same as that when the
cognizance of the offence is taken and process
issued, the degree of satisfaction under
Section 319 of the Code is much higher.
Having summarised the law on the degree
of satisfaction required by the courts to
summon an accused to face trial in exercise of
power under Section 319 of the Code, we now
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proceed to consider the submissions advanced by
the learned counsel. It is common ground that
the only evidence that the trial court has
relied to summon the appellant to face the
trial is the note written by the deceased in
his own handwriting apprehending death at the
appellant’s hand. The same reads as follows:
“Date: 18.11.2004 I, Mulubhai Modhvadiya write this note that the then Irrigation Minister Babubhai Bokhiriya @ Babulal want to kill me due to personal differences with me. Therefore I inform to the State and to the police by this note that whenever I die, then I request to do thorough investigation because phone calls are coming threatening to kill me. If I will make complaint today then he will by using his influence destroy the complaint, therefore I am keeping this note in my purse and I am clearly stating that If I will die due to murder then my murder will be done by Babu Bokhiriya only, if dumb government listen to my note than take strict action against Babu Bhokhiriya and my soul will be pleased. I am also giving my finger print on this letter and also signing under it. Therefore you have no doubt about it.
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Yours sincerely Sd/-
(Mulubhai Modhvadiya)”
It is an admitted position that all those
who were put on trial have now been acquitted
by the trial court.
Mr. V.A. Bobde, learned Senior Counsel
appearing on behalf of the appellant submits
that in the course of trial of an offence, when
it appears from the evidence that any person,
not being the accused, has committed any
offence for which such person could be tried
together with the accused facing trial, the
court may proceed against such person for the
offence which he appears to have committed. He
points out that the power under Section 319 of
the Code can be exercised when it appears from
the evidence that any person not being the
accused, has committed any offence. In his
submission, the evidence would obviously mean
the evidence admissible in law. He submits
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that the note allegedly recovered from the
deceased expresses mere apprehension of death
and, therefore, it is inadmissible in evidence
and does not come within the ambit of Section
32 of the Evidence Act (hereinafter referred to
as “the Act”). He further submits that the
note does not relate to the cause of death nor
it describes any circumstance that led to his
death. It has also been pointed out that the
note recovered is also not relevant under
Section 32 of the Act as it has no proximity
with the event of his death, as the same was
written over a year ago.
Dr. A.M. Singhvi, learned senior counsel
appearing for Respondent No.2, however, submits
that any statement – written or verbal, made
under an expectation of death is relevant under
Section 32 of the Act and need not necessarily
be followed by death immediately. He submits
that the letter recovered from the deceased
discloses a relevant fact as the same has been
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made under apprehension of death and relates to
its cause. Though he admits that the letter
was written over a year ago, it is his
contention that it can still be taken into
consideration as it is not necessary to have
immediate nexus between the words written and
the death. In support of the submission,
reliance has been placed on a decision of this
Court in the case of Rattan Singh v. State of Himachal Pradesh, 1997 (4) SCC 161 wherein it has been held as follows:
“15. ……..The collocation of the words in Section 32(1) “circumstances of the transaction which resulted in his death” is apparently of wider amplitude than saying “circumstances which caused his death”. There need not necessarily be a direct nexus between “circumstances” and death. It is enough if the words spoken by the deceased have reference to any circumstance which has connection with any of the transactions which ended up in the death of the deceased. Such statement would also fall within the purview of Section 32(1) of the Evidence Act. In other words, it is not necessary that such circumstance should be proximate, for, even distant
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circumstances can also become admissible under the sub-section, provided it has nexus with the transaction which resulted in the death………………”
We have given our thoughtful
consideration to the rival submissions and the
first question which falls for our
determination is whether the note in question
is admissible in evidence or in other words,
can be treated as a dying declaration under
Section 32 of the Act. Section 32 of the Act
reads as follows:
“32.Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense, which under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:
(1) when it relates to cause of death.-When the statement is made by a
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person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
xxx xxx xxx”
From a plain reading of the aforesaid
provision, it is evident that a statement of a
fact by a person who is dead when it relates to
cause of death is relevant. It is an exception
to the rule of hearsay. Any statement made by
a person as to the cause of his death or as to
any of the circumstances of the transaction
which resulted in his death is relevant in a
case in which the cause of death of the person
making the statement comes into question.
Indian law has made a departure from the
English law where the statements which directly
relate to the cause of death are admissible.
General expressions suspecting a particular
individual not directly related to the occasion
of death are not admissible when the cause of
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death of the deceased comes into question. In
the present case, except the apprehension
expressed by the deceased, the statement made
by him does not relate to the cause of his
death or to any circumstance of the transaction
which resulted in his death. Once we hold so,
the note does not satisfy the requirement of
Section 32 of the Act. The note, therefore, in
our opinion, is not admissible in evidence and,
thus, cannot be considered as such to enable
exercise of power under Section 319 of the
Code.
The Privy Council had the occasion to
consider the meaning of the expression
“circumstances of transaction” used in Section
32 of the Act in the case of Pakala Narayanswami v. Emperor, AIR 1939 PC 47 and on page 50 held as follows:
“………The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be
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circumstances of the transaction : general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible……………”
Aforesaid view had been approved by this
Court in Shiv Kumar v. State of Uttar Pradesh, (Criminal Appeal No. 55 of 1966, decision dated
29th July, 1966), wherein it was held as under:
“It is clear that if the statement of the deceased is to be admissible under this section it must be a statement relating to the circumstances of the transaction resulting in his death. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed, but general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. A necessary condition of admissibility under the section is that the circumstance must have some proximate relation to the actual occurrence. For instance, a statement made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his
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reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be a circumstance of the transaction, and would be so whether the person was unknown, or was not the person accused. The phrase “circumstances of the transaction” is a phrase that no doubt conveys some limitations. It is not as broad as the analogous use in “circumstantial evidence” which includes evidence of all relevant facts. It is on the other hand narrower than ‘res gestae’ [See Pakala Narayana Swami v. The King Emperor, AIR 1939 PC 47]. As we have already stated, the circumstance must have some proximate relation to the actual occurrence if the statement of the deceased is to be admissible under s.32(1) of the Evidence Act……….”
(underlining ours)
This Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, 1984 (4) SCC 116, after review of a large number of decisions of the Privy Council, various High
Courts and the Supreme Court, endorsed the view
taken by the Privy Council in Pakala Narayanswami (supra) in the following words:
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“21. Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of the Evidence Act, the following propositions emerge: (1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice.”
All these decisions support the view which
we have taken that the note written by the
deceased does not relate to the cause of his
death or to any of the circumstances of the
transaction which resulted in his death and
therefore, is inadmissible in law.
Now we revert to the authority of this
Court in Rattan Singh (supra) relied on by Dr.
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Singhvi. In the said case, the deceased
immediately before she was fired at, spoke out
that the accused was standing nearby with a
gun. In a split second the sound of firearm
shot was heard and in a trice her life snuffed
off. In the said background, this Court held
that the words spoken by the deceased have
connection with the circumstance of transaction
which resulted into death. In the case in
hand, excepting apprehension, there is nothing
in the note. No circumstance of any
transaction resulting in the death of the
deceased is found in the note. Hence, this
decision in no way supports the contention of
Dr. Singhvi.
The other evidence sought to be relied
for summoning the appellant is the alleged
conversation between the appellant and the
accused on and immediately after the day of the
occurrence. But, nothing has come during the
course of trial regarding the content of the
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conversation and from call records alone, the
appellant’s complicity in the crime does not
surface at all.
From what we have observed above, it is
evident that no evidence has at all come during
the trial which shows even a prima facie
complicity of the appellant in the crime. In
that view of the matter, the order passed by
the trial court summoning the appellant, as
affirmed by the High Court, cannot be allowed
to stand.
To put the record straight, Mr. Bobde has
raised various other contentions to show that
the appellant cannot be put on trial, but in
view of our answer to the aforesaid
contentions, we deem it inexpedient to either
incorporate or answer the same.
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In the result, we allow this appeal and
set aside the order of the trial Court
summoning the appellant to face trial and the
Order of the High Court affirming the same.
………………………………………………………………J
(CHANDRAMAULI KR. PRASAD)
………………………………………………………………J
(PINAKI CHANDRA GHOSE)
NEW DELHI, APRIL 3, 2014.
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