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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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