STATE OF GUJARAT Vs JAYRAJBHAI PUNJABHAI VARU
Bench: KURIAN JOSEPH,R.K. AGRAWAL
Case number: Crl.A. No.-001236-001236 / 2010
Diary number: 35142 / 2009
Advocates: HEMANTIKA WAHI Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1236 OF 2010
State of Gujarat .... Appellant(s)
Versus
Jayrajbhai Punjabhai Varu .... Respondent(s)
J U D G M E N T
R.K. Agrawal, J.
1) This appeal has been filed against the judgment and
order dated 16.07.2009 passed by the High Court of Gujarat
at Ahmedabad in Criminal Appeal No. 976 of 2003 whereby
the High Court allowed the appeal filed by the respondent
herein against the judgment and order dated 30.06.2003
passed by the Court of Sessions Judge, Amreli in Sessions
Case No. 20/2003.
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2) Brief facts:
(a) Rekhaben (since deceased) was married to Jayrajbhai
Punjabhai Varu-the respondent herein and was residing at
Gopalgram, Taluka Chalala, Gujarat along with her in-laws,
viz., Punjabhai Lakhabhai Varu-father-in-law, Manuben
Punjabhai-mother-in-law and Ramjuben
Punjabhai-sister-in-law.
(b) On 10.03.2003, Rekhaben was admitted to the
Government Hospital, Amreli with 90 per cent burn injuries.
A First Information Report (FIR) being No. 7/03 got registered
under Section 307 of the Indian Penal Code, 1860 (in short
‘the IPC’) wherein she stated that on 10.03.2003, at about 5
o’clock in the morning, when all other family members were
sleeping in the house, an unknown person came near her and
told her that he had come to take her. By saying so, he took
her into the kitchen, poured kerosene on her and by lighting
the matchstick set her on fire and went away from the place
and, consequently, she started burning in flames. She further
gave a statement that the unknown person was an outsider
who was wearing white clothes. On hearing her cries, other
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family members also woke up and admitted her in the hospital
at Amreli. It may be mentioned here that the above said FIR
was registered on the basis of the statement given by the
deceased herself on 10.03.2003, at about 7:30 a.m., in the
hospital to Shri Bhikhu Karsanbhai, P.S.O., Amreli City which
was treated as a complaint. In the said statement, the thumb
impression of Rekhaben was identified by Vala Jaskubhai
Suragbhai – the father of the deceased.
(c) On the very same day, at 8:25 a.m., she made a
statement before the Executive Magistrate, Amreli and
narrated the whole incident. In the afternoon, Rekhaben
succumbed to her injuries. On the basis of the statement
given by the deceased, Jayrajbhai Punjabhai Varu-the
respondent herein, Punjabhai Lakhabhai Varu-father-in-law,
Manuben Punjabhai-mother-in-law and Ramjuben
Punjabhai-sister-in-law were arrayed as accused and a
chargesheet was filed under Sections 302, 201 and 34 of the
IPC and the case was committed to the Court of Sessions and
numbered as Sessions Case No. 20/2003.
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(d) The Sessions Judge, Amreli, vide order dated 30.06.2003,
convicted the husband of the deceased under Section 302 of
the IPC and sentenced him to suffer rigorous imprisonment for
life while acquitting the other accused persons.
(e) Being aggrieved, the respondent herein filed a Criminal
Appeal No. 976 of 2003 before the High Court of Gujarat. The
Division Bench of the High Court, vide order dated
16.07.2009, allowed the appeal.
(f) Aggrieved by the order dated 16.07.2009 acquitting the
husband of the deceased of all the charges, the State has filed
this appeal by way of special leave before this Court.
3) Heard learned counsel for the parties and perused the
record.
4) Learned counsel for the respondent-State submitted that
the relations between the deceased and the respondent herein
were strained and the deceased was compelled to withdraw
from her matrimonial home several times. The deposition of
Jaskubhai Suragbhai (PW-1)-father of the deceased shows
that she was subjected to torture, both mental and physical,
before she succumbed to the injuries. It was contended that
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the deceased was compelled to give false and wrong
statement/declaration before the police as well as before the
Executive Magistrate by the accused. It was further
contended that the accused persons caused physical cruelty to
the deceased during the intervening night of the incident and
poured kerosene upon her and set her on fire. The statement
given by P.W.1 is consistent and his evidence is getting
absolute corroboration with the circumstantial evidence which
is available on record. His evidence remained unimpeached
during the course of the trial and there is no reason for which
his evidence can be side lined. Learned counsel for the State
vehemently contended that the deceased Rekhaben died under
mysterious circumstances in the house which was occupied
and possessed by the accused person for which the accused
has not offered reasonable explanation, therefore, the
presumption as provided under Section 114 of the Indian
Evidence Act is required to be drawn and such presumption
has not been rebutted by offering reasonable explanation.
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5) Learned counsel for the respondent contended that the
prosecution has relied upon the testimony of PW-1 – father of
the deceased who had claimed that the deceased narrated the
whole incident to him but he informed the same to the police
after performing the cremation ceremony and there is every
opportunity for possible concoction of a false version. Learned
counsel further submitted that the deceased had not named
any of the accused in her dying declaration which was
recorded by two independent witnesses on two different
occasions and in both the dying declarations she had stated
that the person who poured the kerosene and set her on fire
was a stranger and not known to her. Learned counsel further
submitted that Dilubhai Valerabhai- a close relative of PW-1,
who accompanied him to see the deceased in the hospital has
denied having any conversation with the deceased. It was
further submitted that the evidence adduced by the
prosecution are not worth acceptance and are not sufficient to
draw the inference of guilt of the accused, therefore, the
respondent herein should be exonerated of the charges leveled
against him.
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6) It is evident from the material on record that Rekhaben
was removed to the hospital with burn injuries and her
statement was recorded by Bhikhubhai Karsanbhai Parmar
(PW-6), who was discharging duty with the Police at the
hospital. The dying declaration of the deceased was recorded
by the Executive Magistrate after following the due process of
law. In view of the above, it is relevant to quote the relevant
portion of the statements given by the deceased before the
police authorities as well as the Executive Magistrate which
are as under:-
“ Date : 10.03.2003
My name is Rekhaben w/o Jayrajbhai Pujbhai Varu, Kathi Darbar by caste, aged 25 years, occupation: household, Res. Gopalgram, Taluka Chalala.
On being asked in person at Armeli illegible I state that I am residing at above mentioned address with my mother in law, father in law and husband and my husband is doing work of cutting diamond at illegible. My parents are residing at Vandiya village and name of my father is Jasubhai Vala and I was married before about two years from today. I have no child.
Today in the early morning at about Five O’ clock the members of my family were sleeping outside during that an unknown person came near me and he woke me up and told me that wake up I have come to take you, by saying so he took me in kitchen and poured kerosene on me and kindled match and this unknown outsider person went away. This unknown person was outsider and he had put on white
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cloths and I was started burning on my whole body, therefore I was shouting so persons of my house woke up and they got me admitted here in Amreli Government hospital here. Here my treatment is continued. I am conscious. I have no harassment of my mother in law, father in law or my husband.
The said incident has taken place today in early morning at about Five O’ clock any outsider unknown person got me woke up and took me in kitchen where he poured kerosene lying there and kindled and threw match on me and this unknown person went away and this person was outsider.
Such my fact as stated by me is true and correct.
Before Sd/- Bhikhu Karsanbhai
P.S.O. Amreli City”
“BEFORE THE EXECUTIVE MAGISTRATE, AMRELI Name of Hospital : Civil Amreli Ward No. Burns Bed No. 33 ____________________________________________________________ 1. What is your name : Rekhaben Jayrajbhai
2. Name of father/husband : Jayrajbhai Punjabhai
3. Your age : 25
4. Residence/address : Gopalgram Tal. Dhari.
5. At present where are you? : Civil Hospital Amreli.
6. What has happened to you?
7. How it was happened? All were sleeping in house. An unknown person came and he made me woke up from place where I was sleeping and he brought me in kitchen and he poured liquid in box lying in the kitchen on me and unknown person kindled match stick and threw on me and ran away. He was a male person and he was a outsider person.
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8. At what time incident took place? : The incident has taken place today in early morning. I don’t remember time. 9. At what place this incident has taken place? : Gopal gram at my house. 10. Who were present at place of incident? : All members of my house were sleeping. 11. Who brought you at clinic/hospital? My mother in law and my husband’s elder brother etc. brought me. 12. Whether you have any physical difficulty? : No 13. If you have to say anything further then say? : I have nothing further to say. 14. The date and time of starting of D.D. and completion of D.D. : 8.25 A.M.
8.35 A.M. 10.3.2003. There is no presence of police at the time when above deposition is recorded.
Sd/- illegible The patient is conscious and D.D. is recorded before me. Sd/- Medical Officer, Amreli 8.25 to 8.35 A.M. D.D. recorded in my presence.
Sd/- Thumb impression of right leg of Rekhaben Jayraj as both hands are burnt the thumb impression of Right leg of Rekhaben is taken.
Sd/- Executive Magistrate, Amreli.”
7) It is relevant to point out here that in both the
statements mentioned above, the deceased has not named her
husband or his family members. Though when a specific
question was put to her that what exactly happened on that
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night, she narrated that on 10.03.2003, at about 5 o’clock in
the morning, when all other family members were sleeping in
the house, an unknown person came near her and took her
into the kitchen. She further narrated that he poured kerosene
on her and set her on fire and went away from the place. She
further gave a statement that the unknown person was an
outsider who was wearing white clothes. On hearing her cries,
other family members also woke up and admitted her in the
hospital at Amreli. There is no denying the fact that the
deceased was in her matrimonial home at the time of the
incident and all other family members were also present in the
house at the relevant time. In both the dying declarations
recorded by two independent witnesses after following the due
process of law, she gave a statement that the person was
unknown and there was no involvement of her in-laws or
husband. Both the statements are consistent and there is no
contradiction as to the role of the respondent herein. From a
perusal of the statements made before the Executive
Magistrate as well as the police officer, it becomes very clear
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that there was no involvement of the respondent herein in the
commission of offence.
8) On the other hand, learned counsel for the State placed
reliance upon the deposition of the father of the deceased who
deposed about the involvement of respondent herein and
in-laws of the deceased in the commission of offence. It is
relevant to quote the relevant portion of his deposition on the
basis of which the Sessions Court convicted the respondent
herein which is as under:-
“4. On dated 10th of Fagan month in the early morning a phone call came at house of my uncle’s son Dilubhai that Rekhaben has been burnt, therefore I and my uncle’s son Dilubhai and Manglubhai went at Amreli Civil Hospital. Rekhaben was admitted in the hospital and treatment was continued. Rekhaben was burnt on whole body. I could not see therefore I went outside. After I felt something better I and Dilubhai again went before my daughter, Rekhaben and asked her that what this happened so Rekhaben told me that I have not done it. Rekhaben told me that after giving torture for whole night thereafter she was taken in kitchen and after pouring kerosene she was enlightened with match stick. Jayrajbhai made Rekhaben woke up and took her in kitchen. Rekhaben has not said as to who poured kerosene. Except this there were no other persons present there. Rekhaben had not asked me anything as to who enlightened match stick. When I asked Rekhaben she stated that except those people no other person was present there. Rekhaben told me that department came at that time I stated such that person who enlightened match stick had put on white cloth and was unknown person, because accused Punjbhai, Jarajbhai, Manuben and Ramjuben had given such threat that her only one brother will not be let live, therefore, she has not given real fact before department. When Rekhaben
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had such talk with me at that time my uncle’s son Dilubhai was present there. During the treatment at 2.15 PM in the noon Rekhaben has expired. As Rekhaben was burnt therefore she has expired.”
Cross examination by Advocate Shri G.A. Parikh for the accused.
“6. I and Dilubhai reached at hospital at eight to eight thirty o’ clock in the morning. It is not true that at Seven O’clock in the morning I and Dilubhai reached at Civil Hospital, Amreli. It is true that in my statement name of Manglubhai is not written.
7. When I reached at hospital at that time police already came there. I don’t know that whether police recorded complaint of Rekhaben in my presence or not. It is true that I identified thumb impression of Rekhaben on the say of police. That thumb impression was of Rekhaben. Mamlatdar went inside to record statement. It is true that I identified thumb impression of Rekhaben on that statement. When I reached near Rekhaben in the hospital at that time…. .was burnt. The glucose bottles were not injected to her. She had thirst of water. She could not bend lips. I caused her drink water and caused her eat ice cream. It is not true that Rekhaben had totally no talk with me.”
9) Learned Sessions Judge, on the basis of the deposition of
PW-1, convicted the respondent herein for the offence under
Section 302 of the IPC. PW-1 deposed before the court that
the deceased informed him that after giving her torture for the
whole night, she was taken to the kitchen by the respondent
herein and after pouring kerosene on her, matchstick was
lighted. He further deposed that except the respondent
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herein, no other person was present at the time of the
incident. It was further deposed that the respondent herein
threatened the deceased of dire consequences in case of
disclosure of the incident. In a nutshell, PW-1 deposed about
the cruelty and ill behavior meted out to the deceased at her
matrimonial home.
10) The courts below have to be extremely careful when they
deal with a dying declaration as the maker thereof is not
available for the cross-examination which poses a great
difficulty to the accused person. A mechanical approach in
relying upon a dying declaration just because it is there is
extremely dangerous. The court has to examine a dying
declaration scrupulously with a microscopic eye to find out
whether the dying declaration is voluntary, truthful, made in a
conscious state of mind and without being influenced by the
relatives present or by the investigating agency who may be
interested in the success of investigation or which may be
negligent while recording the dying declaration. In the case on
hand, there are two sets of evidence, one is the
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statement/declaration made before the police officer and the
Executive Magistrate and the other is the oral dying
declaration made by the deceased before her father who was
examined as PW-1. On a careful scrutiny of the materials on
record, it cannot be said that there were contradictions in the
statements made before the police officer and the Executive
Magistrate as to the role of the respondent herein in the
commission of the offence and in such circumstances, one set
of evidence which is more consistent and reliable, which in the
present case being one in favour of the respondent herein,
requires to be accepted and conviction could not be placed on
the sole testimony of PW-1. A number of times the relatives
influence the investigating agency and bring about a dying
declaration. The dying declarations recorded by the
investigating agencies have to be very scrupulously examined
and the court must remain alive to all the attendant
circumstances at the time when the dying declaration comes
into being. In case of more than one dying declaration, the
intrinsic contradictions in those dying declarations are
extremely important. It cannot be that a dying declaration
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which supports the prosecution alone can be accepted while
the other innocent dying declarations have to be rejected.
Such a trend will be extremely dangerous. However, the courts
below are fully entitled to act on the dying declarations and
make them the basis of conviction, where the dying
declarations pass all the above tests.
11) The court has to weigh all the attendant circumstances
and come to the independent finding whether the dying
declaration was properly recorded and whether it was
voluntary and truthful. Once the court is convinced that the
dying declaration is so recorded, it may be acted upon and can
be made a basis of conviction. The courts must bear in mind
that each criminal trial is an individual aspect. It may differ
from the other trials in some or the other respect and,
therefore, a mechanical approach to the law of dying
declaration has to be shunned.
12) On appreciation of evidence on record, we are of the
considered view that the dying declarations of the deceased
recorded by the police officer as well as the Executive
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Magistrate are fully corroborated and there is no inconsistency
as regards the role of the respondent herein in the commission
of offence. From a perusal of the statement recorded by Bhiku
Karsanbhai, P.S.O., the thumb impression of Rekhaben (since
deceased) which had been identified by her father-Sri Vala
Jaskubhai Suragbhai as also his cross-examination in which
he admitted that police had already come there and he had
identified her thumb impression and Mamlatdar had gone
inside to record statement, there is no reason as to why
Rekhaben would give names of her husband and her in-laws
in the alleged statement given to her father. A dying
declaration is entitled to great weight. The conviction basing
reliance upon the oral dying declaration made to the father of
the deceased is not reliable and such a declaration can be a
result of afterthought. This is the reason the Court also
insists that the dying declaration should be of such a nature
as to inspire full confidence of the Court in its correctness. The
Court has to be on guard that the statement of deceased was
not as a result of tutoring, prompting or a product of
imagination. The Court must be further satisfied that the
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deceased was in a fit state of mind after a clear opportunity to
observe and identify the assailants. Once the Court is satisfied
that the declaration was true and voluntary, undoubtedly, it
can base its conviction without any further corroboration. It
cannot be laid down as an absolute rule of law that the dying
declaration cannot form the sole basis of conviction unless it is
corroborated. The rule requiring corroboration is merely a rule
of prudence.
13) The burden of proof in criminal law is beyond all
reasonable doubt. The prosecution has to prove the guilt of the
accused beyond all reasonable doubt and it is also the rule of
justice in criminal law that if two views are possible on the
evidence adduced in the case, one pointing to the guilt of the
accused and the other towards his innocence, the view which
is favourable to the accused should be adopted.
14) After considering the evidence and the judgments of the
courts below, we are of the opinion that the evidence available
on record and the sole evidence of the father of the deceased
as compared to the dying declaration do not inspire confidence
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in the mind of this Court to make it the basis for the
conviction of the respondent-accused. Hence, the appeal fails
and is accordingly dismissed.
..…………….………………………J. (KURIAN JOSEPH)
.…....…………………………………J. (R.K. AGRAWAL)
NEW DELHI; JULY 11, 2016.
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