Rameshbhai Lavaganbhai Vasava vs State Of Gujarat

Gujarat High Court

Rameshbhai Lavaganbhai Vasava vs State Of Gujarat on 20 February, 2025

Author: Biren Vaishnav

Bench: Biren Vaishnav

                                                                                                             NEUTRAL CITATION




                            R/CR.MA/24812/2024                                 ORDER DATED: 20/02/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                           R/CRIMINAL MISC.APPLICATION (DIRECTION) NO. 24812 of 2024

                                            In R/CRIMINAL APPEAL NO. 724 of 2011

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                                             RAMESHBHAI LAVAGANBHAI VASAVA
                                                         Versus
                                                STATE OF GUJARAT & ANR.
                      ==========================================================
                      Appearance:
                      THROUGH JAIL for the Applicant(s) No. 1
                      MR. KANVA M. ANTANI, ADDL. PUBLIC PROSECUTOR for the
                      Respondent(s) No. 1
                      RULE SERVED for the Respondent(s) No. 2
                      ==========================================================
                          CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
                                JUSTICE BIREN VAISHNAV
                                and
                                HONOURABLE MR. JUSTICE HEMANT M.
                                PRACHCHHAK

                                            Date : 20/02/2025
                                              ORAL ORDER

(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE BIREN VAISHNAV) 1 This application through jail has been placed before us as the criminal appeal of the applicant, being Criminal Appeal No. 724 of 2011, was decided by a Division Bench of this Court in which, one of us, (Justice Biren A. Vaishnav) was a Member.

2 The accused-applicant has preferred an application for remission before the appropriate Government.

NEUTRAL CITATION R/CR.MA/24812/2024 ORDER DATED: 20/02/2025 undefined Pursuant to such application, the Jail Authority has addressed a letter to the Registry seeking an opinion of this Court in accordance with the provisions of Sec.432(2) of the Code of Criminal Procedure. The communication dated 06.12.2024 of the competent Jail Authority at Surat is perused. Since the conviction was confirmed by the High Court, an opinion has to he rendered by us as to whether the application for remission should be granted.

2.1 The appellant was the accused who was convicted of offences punishable under Sec.302 of the Indian Penal Code and has been sentenced to rigorous life imprisonment and a fine of Rs.2,000/- and in default of payment of fine, to undergo further simple imprisonment for a period of six months. The law of Remission has been extensively considered by the Hon'ble Supreme Court in the case of Bilkis Yakub Rasool vs. Union of India, reported in 2024(1) Scale 302. Perusal of the judgement of the appeal and the excerpts thereof would indicate that the applicant, Rameshbhai Lavaganbhai Page 2 of 13 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:36:59 IST 2025 NEUTRAL CITATION R/CR.MA/24812/2024 ORDER DATED: 20/02/2025 undefined Vasava, was implicated in all the three dying declarations. It was the applicant-accused, who set the deceased ablaze with a lighted torch in his hands. While dismissing the criminal appeal, the Division Bench of this Court, observed as under:

"10.1 In Ashabai v. State of Maharashtra, (2013) 2 SCC 224, the Supreme Court held thus:-

Evidentiary value of the dying declaration

15. About the evidentiary value of the dying declaration of the deceased, it is relevant to refer to Section 32(1) of the Evidence Act, 1872, which reads as under:

"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 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. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

NEUTRAL CITATION R/CR.MA/24812/2024 ORDER DATED: 20/02/2025 undefined (2)-(8) * * * It is clear from the above provision that the statement made by the deceased by way of a declaration is admissible in evidence under Section 32(1) of the Evidence Act. It is not in dispute that her statement relates to the cause of her death. In that event, it qualifies the criteria mentioned in Section 32(1) of the Evidence Act. There is no particular form or procedure prescribed for recording a dying declaration nor is it required to be recorded only by a Magistrate. As a general rule, it is advisable to get the evidence of the declarant certified from a doctor. In appropriate cases, the satisfaction of the person recording the statement regarding the state of mind of the deceased would also be sufficient to hold that the deceased was in a position to make a statement. It is settled law that if the prosecution solely depends on the dying declaration, the normal rule is that the courts must exercise due care and caution to ensure genuineness of the dying declaration, keeping in mind that the accused had no opportunity to test the veracity of the statement of the deceased by cross-examination. As rightly observed by the High Court, the law does not insist upon the corroboration of dying declaration before it can be accepted. The insistence of corroboration to a dying declaration is only a rule of prudence. When the court is satisfied that the dying declaration is voluntary, not tainted by tutoring or animosity, and is not a product of the imagination of the declarant, in that event, there is no impediment in convicting the accused on the basis of such dying declaration. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assessed independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variations in the other."

NEUTRAL CITATION R/CR.MA/24812/2024 ORDER DATED: 20/02/2025 undefined In the present case, all the three accused viz. Lavghanbhai Maganbhai, Bharatbhai Lavghanbhai and Rameshbhai Lavghanbhai have been implicated in all the three dying declarations. While in the statement made before the Medical Officer and before the Executive Magistrate, the allegation in general is that all the three accused have together set the first informant and her husband ablaze, the first information report is a more detailed one and attributes definite roles to each of the accused. Insofar as the respondent Lavghanbhai is concerned, it is stated that he was wielding an axe and had inflicted two blows on the deceased and felled him and thereafter, Bharatbhai poured kerosene over him and Rameshbhai set him ablaze with a lighted torch which he was holding. As per the say of the first informant, Bharatbhai came to call her husband telling him that their father had called him. Upon Kantibhai reaching there, the first informant heard cries and rushed to the scene and saw that Lavghanbhai had inflicted two blows on the deceased whereafter Bharatbhai sprinkled kerosene over him from the kerosene can that he was holding and Rameshbhai set him ablaze with a lighted torch in his hands. Upon her intervening and trying to save her husband, Bharatbhai poured kerosene over her body and Rameshbhai set her ablaze with the torch. Insofar as the veracity of the dying declarations is concerned, in relation to the history given before the Medical Officer, for the first time before this court, it is contended that such history was not narrated by the deceased but by Parthambhai. Assuming that the history was not given by the deceased, even then there are two dying declarations one in the nature of dying declaration recorded by the Executive Magistrate and the other recorded by the Police Inspector. Insofar as the fitness of the deceased to give dying declarations is concerned, it may be germane to refer to the above referred decision of the Supreme Page 5 of 13 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:36:59 IST 2025 NEUTRAL CITATION R/CR.MA/24812/2024 ORDER DATED: 20/02/2025 undefined Court in Ashabai v. State of Maharashtra (supra)wherein it has been recorded thus:-

"14. The learned counsel for the appellants argued that the version of incident as given by the deceased in all the four dying declarations is inconsistent and no reliance can be placed on it. We have already referred to the persons who recorded all the four statements, her condition and the certificate issued by the doctor as well as the contents of the statements. Though, in one of the statements, she implicated two more persons (who were acquitted by the trial court) she was consistent about the role played by her mother-in-law and her sisters-in-law (the appellants before us). It is relevant to note that the incident took place in the bedroom of the deceased. It is also clear that she was subjected to torture as she had not conceived a child even after three years of marriage and in all the four dying declarations, she was conscious in mentioning the role of her mother-in-law and sisters-in-law. We are satisfied that there is no contradiction as to the main aspect, namely, implicating her mother-in-law and sisters-in-law as well as the role played by them."

Thus, in the above decision, though there were four dying declarations, and in one of the dying declarations, the deceased had sought to implicate two more persons, the court has stated that to the extent there was no contradiction, the dying declaration could be accepted.

10.2 In Govindappa v. State of Karnataka, (2010) 6 SCC 533, it was argued that the Executive Magistrate, while recording the dying declaration did not get any certificate from the Medical Officer regarding the condition of the deceased. The Supreme Court then held that such a circumstance itself is not sufficient to discard the dying Page 6 of 13 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:36:59 IST 2025 NEUTRAL CITATION R/CR.MA/24812/2024 ORDER DATED: 20/02/2025 undefined declaration. Certification by a doctor regarding the fit state of mind of the deceased, for the purpose of giving a dying declaration, is essentially a rule of caution and, therefore, the voluntary and truthful nature of such a declaration, may also be established otherwise. Such a dying declaration must be recorded on the basis that normally, a person on the verge of death would not implicate somebody falsely. Thus, a dying declaration must be given due weight in evidence.

10.3 In State of M.P. v. Dal Singh, (2013) 14 SCC 159, the Supreme Court held that the law on the issue can be summarised to the effect that law does not provide who can record a dying declaration, nor is there any prescribed form, format or procedure for the same. The person who records a dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement. Moreover, the requirement of a certificate provided by a doctor in respect of such state of the deceased, is not essential in every case. Undoubtedly, the subject of the evidentiary value and acceptability of a dying declaration, must be approached with caution for the reason that the maker of such a statement cannot be subjected to cross-examination. However, the court may not look for corroboration of a dying declaration, unless the declaration suffers from any infirmity. The court further held thus:-

"5. The contradictions raised by the defence in the two dying declarations, as regards who had put the kerosene oil on her, and who had lit the fire have been carefully examined and explained by the trial court. Furthermore, in such a state of mind, one cannot expect that a person in such a physical condition, would be able to give the exact version of the incident. She had been suffering from great mental and Page 7 of 13 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:36:59 IST 2025 NEUTRAL CITATION R/CR.MA/24812/2024 ORDER DATED: 20/02/2025 undefined physical agony. Upon proper appreciation of the evidence on record, the trial court had found the dying declarations to be entirely believable, and worth placing reliance upon, but the High Court on a rather flimsy ground, without appreciating material facts, has taken a contrary view. In our opinion, as the defence did not put any question either to the Executive Magistrate, or to the IO, or to the doctors who had examined her or conducted the post- mortem, with respect to whether any part of the thumb had skin on it or not, as in both the dying declarations, ridges and curves had been clearly found to exist, we do not see any reason to disbelieve the version of events provided by the Executive Magistrate and the IO, who had recorded the dying declarations. No suggestion was made to either of them in this regard, nor was any explanation furnished with respect to why these two independent persons who had recorded the dying declarations, would have deposed against the respondentaccused. In the event that both of them had found the deceased to be in a fit physical and mental condition to make a statement, there exists no reason to disbelieve the same. In the light of such a fact situation, the concept of placing of a thumb impression loses its significance altogether."

10.4 In Laxman v. State of Maharashtra (supra), the above principles have been reiterated. Similarly, in Kamalavva v. State of Karnataka (supra), it is held that certification by a Medical Officer is a mere rule of prudence and not the ultimate test as to whether or not the dying declaration is truthful or not.

11. In the light of the principles propounded in the above decisions, it is evident that the fact that there is no endorsement of the Medical Officer on the dying declaration or the first information report to Page 8 of 13 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:36:59 IST 2025 NEUTRAL CITATION R/CR.MA/24812/2024 ORDER DATED: 20/02/2025 undefined the effect that the patient was conscious and in a fit state of mind to record the dying declaration, would not render the same unreliable. What is required to be examined is as to whether the persons who have recorded such statement have deposed as regards the status of the patient. As noticed from the testimonies of the Executive Magistrate and the Investigating Officer, both of them had categorically stated that at the time when the dying declaration and the first information respectively, were recorded, the patient was conscious and in a fit state of mind and was able to speak. Under the circumstances, the contention that the dying declaration is not acceptable as the same does not bear the endorsement of the Medical Officer to the effect that the patient was conscious and in a position to give a statement, does not merit acceptance.

12. Since, there is a difference in the dying declaration recorded by the Executive Magistrate and the Investigating Officer to the effect that in the dying declaration recorded by the Executive Magistrate, Rakshaben had stated that all the three accused persons had poured kerosene over them and set them ablaze whereas in the first information report, she has attributed specific roles to all the three accused persons stating that accused Lavghanbhai had inflicted two blows on Kantibhai and felled him and thereafter, accused Bharatbhai had sprinkled kerosene over him and accused Rameshbhai had set him ablaze with a lighted torch. The dying declarations have been challenged on the ground that there are major discrepancies in both the dying declarations and hence, the same are not truthful and no conviction can be based upon the same. In this regard, the Supreme Court in State of M.P. v. Dal Singh, (2013) 14 SCC 159, has, in a case where contradictions were raised by the defence in the two dying declarations as regards who put the Page 9 of 13 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:36:59 IST 2025 NEUTRAL CITATION R/CR.MA/24812/2024 ORDER DATED: 20/02/2025 undefined kerosene/oil on her and who lit the fire, observed that in such a state of mind, one cannot expect that a person in such a physical condition, would be able to give the exact version of the incident. The deceased had been suffering from great mental and physical agony. Upon proper appreciation of the evidence on record, the trial court found the dying declarations to be entirely believable and worth placing reliance upon. No suggestion was made to the Magistrate or to the Investigating Officer who had recorded the dying declaration in this regard nor was any explanation furnished with respect to why these two independent persons who had recorded the dying declaration, would have deposed against the respondent accused. The court held that in the event that both of them had found the deceased to be in a fit physical and mental condition to give such a statement, there exists no reason to disbelieve the same.

13. Examining the facts of the present case in the light of the above decision, Rakshaben's husband Kantibhai had been set ablaze and had died on the spot. When she tried to rescue him, the accused persons had also sprinkled kerosene on Rakshaben and set her ablaze, as a consequence whereof, she has sustained burn injuries. Under the circumstances, as held by the Supreme Court in the above decision, Rakshaben could not be expected to give an exact version of the incident. Accordingly, when the police officer put certain detailed queries to Rakshaben, she gave a detailed description of how the incident had occurred, whereas when the Executive Magistrate recorded the dying declaration, she was brief and stated that the three accused persons had set her and her husband ablaze after pouring kerosene over them. In the opinion of this court, there is no major contradiction in the two dying declarations as is sought to be suggested by the learned counsel for the accused persons. The Page 10 of 13 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:36:59 IST 2025 NEUTRAL CITATION R/CR.MA/24812/2024 ORDER DATED: 20/02/2025 undefined Supreme Court in the case of Sandeep v. State of Haryana, (2015) 11 SCC 154, has held that if there are more than one dying declarations, then the court has to also scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy. The court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same. In the facts of the said case, the court found that on an analysis of the dying declarations, there were certain consistent assertions in both the dying declarations; however, in addition thereto, in the second dying declaration various other facts have also been stated. The court observed that it was no doubt true that the additional features did not figure in the dying declaration recorded by the Judicial Magistrate. The court, however, was of the view that such non- mention does not make both the dying declarations incompatible. The court held that incompatibility or inconsistency can be said to arise if the assertions in one dying declaration are so diametrically opposed to the statements in the other that both cannot stand together. In the facts of the present case also, if one closely reads the dying declarations recorded by the Executive Magistrate and the first information report recorded by the Investigating Officer, there is no basic inconsistency or incompatibility in the two dying declarations neither are they so diametrically opposed that they cannot stand together. While the dying declaration given before the Executive Magistrate is a brief, precise dying declaration, the dying declaration given before the Investigating Officer is a more detailed one describing the role played by each of the accused persons. Therefore, the contention that, in view of the inconsistency between the two dying declarations, the same cannot be relied upon, deserves to be rejected.

14. From the two dying declarations given by deceased Rakshaben, it is evident that so far as Page 11 of 13 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:36:59 IST 2025 NEUTRAL CITATION R/CR.MA/24812/2024 ORDER DATED: 20/02/2025 undefined Rameshbhai Lavghanbhai - the appellant in Criminal Appeal No.724 of 2011 is concerned, it is clearly stated that after Bharat sprinkled kerosene over Kantibhai and Rakshaben, he had set them ablaze with the lighted torch that he was holding in his hand. To the extent of the role played by Rameshbhai in setting Rakshaben ablaze, the prosecution case is also supported by the testimony of eye-witness Parthambhai Bhuliyabhai Vasava who has deposed that as soon as he heard cries coming from accused Lavghan's house, he went to the place and saw that Kantibhai was ablaze and that Rakshaben was trying to intervene to save him at which point of time accused Bharat sprinkled kerosene over her and Ramesh set her ablaze with the torch. Thus, insofar as the role played by appellant - Ramesh is concerned, the dying declaration is supported by the testimony of witness Parthambhai who is a neighbour of the accused as well as the deceased. The presence of the said witness at the scene of offence is natural as he lives nearby the house of the accused and the deceased. Under the circumstances, insofar as the charge against Rameshbhai Lavghanbhai is concerned, the prosecution has duly established the same and hence, there is no warrant for interfering with the judgment and order of conviction and sentence qua the said appellant."

3 We, therefore, note that the applicant-convict has been held guilty of offences under Sec.302 of the Indian Penal Code. The jail record of the applicant indicates that the conduct of the applicant is good. However, the opinion of the Office of Superintendent of Police indicates Page 12 of 13 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:36:59 IST 2025 NEUTRAL CITATION R/CR.MA/24812/2024 ORDER DATED: 20/02/2025 undefined that there is an apprehension of breach of peace and public order in case the applicant is granted remission.

4 Keeping all these circumstances in view, we do not recommend the case of the convict positively for remission, yet ultimately we leave it open for the State Government to take an appropriate decision in accordance with the policy. The decision so taken by the State Government shall be communicated to the convict in writing with appropriate reasons so that if he wants to take any further legal steps, he may do so.

A copy of the order be forwarded to Mr.Kanva M. Antani, learned APP, to enable him to be forwarded to the jail authorities, who in turn, can take up the matter with the State Government for remission under Section 432 of the Code of Criminal Procedure. Order accordingly.

Application is disposed of.

(BIREN VAISHNAV, ACJ) (HEMANT M. PRACHCHHAK,J) BIMAL Page 13 of 13 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 22:36:59 IST 2025