Gujarat High Court
Mukeshbhai Mohanlal Saragra vs State Of Gujarat on 23 September, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 722 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MUKESHBHAI MOHANLAL SARAGRA
Versus
STATE OF GUJARAT
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Appearance:
MR MAULIN G PANDYA(3999) for the Appellant(s) No. 1
MS. MONALI BHATT, LD. ADDL. PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 23/09/2024
CAV JUDGMENT
1. This is an appeal at the instance of the appellant-convict
under Section 374(2) of the Criminal Procedure Code, 1973
(for short "the Code") against the judgment and order of
conviction dated 22.02.2007 passed by the learned Addl.
Sessions Judge, Vadodara in Sessions Case No.230 of 2002,
whereby the learned trial judge convicted the appellant-
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accused of the charges for the offence punishable under
Sections 302, 323 and 114 of the Indian Penal Code and
Section 135 of the Bombay Police Act.
2. CASE OF THE PROSECUTION:-
2.1 It appears that the PW-1, Kishanbhai Ramabhai Marvadi,
the brother of the deceased lodged a first information report,
Exh.18 on 18.03.2004. In the complaint at Exh.18 lodged by
the brother of the deceased, it has been stated that the
deceased viz. Kantibhai Ramabhai happened to be his real
brother. They were three brothers, namely, the complainant
Kishanbhai Ramabhai himself who is the elder brother, then
younger to Kishanbhai is Bhagwanbhai and the most youngest
one was deceased Kantibhai Ramabhai. They all were residing
at Harni, Vadodara along with their parents. It has been stated
that both the complainant and Bhagwanbhai are married and
the deceased was bachelor. The complainant is a tailor by
profession whereas the deceased Kantibhai Ramabhai was
running a tea stall along with his father in the vicinity.
Accused Babubhai Samnaji was their neighbor. It has been
further alleged that one Suresh Punamji was working at the tea
stall of the deceased, who met with an accident and sustained
disability. Therefore, he was being looked after by the mother
of the complainant and the deceased, at which point of time,
the said Sureshbhai Punamjibhai received certain amount of
accidental claim. It is also stated that the said Sureshbhai
Punamjibhai, before his death, executed a will for the amount
of claim received by him and lying in his bank account in
favour of the mother of the complainant and the deceased.
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However, accused Babubhai Samnaji also claimed to have the
same will executed by Sureshbhai Punamjibhai in his favour,
Thus, there were counter claims from both the sides, which
resulted in the disputes between them and both the sides
initiated legal proceedings against each other in the court of
law. It is also alleged that keeping a grudge of the same, on
31.12.2001, at around 23:30 hours, when the deceased
Kantibhai Ramabhai was going for urinating towards the canal,
the said Babubhai along with the appellant and other co-
accused, confronted the deceased Kantibhai and started
altercation with him. It is alleged that all the accused persons
then started beating the deceased and the appellant herein
inflicted knife blow on the left side of the stomach of the
deceased due to which the deceased received serious injuries.
It is the case of the prosecution that thereafter the deceased
was taken to the S.S.G. Hospital where on 11.01.2002 at
around 10:15, the deceased Kantibhai Ramabhai succumbed to
the injuries, and thereby all the accused persons, with the aid
of each other, committed the offence under Sections 302, 323
and 114 of the IPC as well as Section 135 of the Bombay Police
Act.
2.2 Under the aforesaid circumstances, the complainant
thought fit to lodge the complaint at the police station.
2.3 On the complaint being lodged the investigation had
commenced. The inquest panchnama, Exh.30, of the dead
body of the deceased was drawn in presence of the panch
witnesses. The panchnama of the place of occurrence, Exh.24,
was drawn in presence of the panch witnesses. The dead body
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of the deceased was sent for postmortem examination and the
postmortem report, Exh.51, revealed that the cause of death
was "shock following septicemia following injury". Thereafter,
all the accused persons were arrested. The statements of
various witnesses were recorded. Finally on completion of
investigation, the investigating officer filed charge sheet
against all the accused persons in the Court of the Judicial
Magistrate, First Class, Vadodara. As the case was exclusively
triable by the Sessions Court, the Judicial Magistrate, First
Class, Vadodara, committed the case to the Sessions Court
under Section 209 of the Criminal Procedure Code.
2.4 The Sessions Court framed the charge against the
accused persons at Exh.6 for the offence punishable under
Sections 302, 323 and 114 of the IPC as well as Section 135 of
the Bombay Police Act and the plea of the accused were
recorded wherein the accused persons did not admit the
charge and claimed to be tried.
2.5 The prosecution adduced in all twenty oral evidences and
twenty one documentary evidences in support of its case;
2.6 After completion of oral as well as documentary evidence
of the prosecution, the statements of the accused persons
under Section 313 of the Criminal Procedure Code were
recorded in which the accused persons stated that the
complaint was a false one and they were innocent.
2.7 At the conclusion of the trial, the learned trial Judge
convicted the appellant-accused of the offence under Section
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302, 323 and 114 of the Indian Penal Code as well as Section
135 of the Bombay Police Act and sentenced him to undergo
simple imprisonment of seven years with fine of Rs.2000/-, and
in default to make the payment of fine, further simple
imprisonment of three months. whereas the rest of the
accused persons came to be acquitted of all the charges.
2.8 Being dissatisfied with the judgment and order of
conviction and sentence, the accused-appellant has come up
with the present appeal.
3. CONTENTIONS ON BEHALF OF THE ACCUSED-
APPELLANT:-
3.1 Learned advocate Mr. Maulin Pandya appearing for the
appellant-accused vehemently submits that the trial Court
committed a serious error in convicting the accused-appellant
for the offence of murder while acquitting the other co-accused
persons on the same set of evidence. As per the case of the
prosecution, there were three eye-witnesses to the incident in
question, however, at the time of considering and appreciating
the evidence of those eye-witnesses, the learned trial judge
has completely discarded their evidence and recorded the
findings to the effect that the depositions of those eye-
witnesses do not inspire any confidence as they cannot be
considered as the eye-witnesses. It is further recorded that at
the most, they can be termed as chance witnesses who might
reach at the scene of offence after occurrence of the incident,
and by giving such findings, the trial judge has completely
discarded the evidence of the three so called eye-witnesses,
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and based upon such findings, the learned trial judge has
acquitted the other co-accused persons, and the said judgment
and order of acquittal has not been assailed by the State any
further and thus the said findings recorded by the trial court
has attained finality. He further submits that, therefore, in the
absence of any eye-witness, the case of the prosecution would
automatically turn into a case hinges upon the circumstantial
evidence, and it is the settled proposition of law that in a case
of circumstantial evidence, the prosecution is required to
establish the continuity in the links of the chain of the
circumstances so as to lead to the only and inescapable
conclusion of the accused being the assailant, inconsistent
or incompatible with the possibility of any other hypothesis
compatible with the innocence of the accused. He further
submits that if a single link is missing, then the benefit of
doubt should always go in favour of the accused. Mr. Pandya
also submits that if the oral evidences of the prosecution may
be seen, there are so many discrepancies, omission and
improvements in the depositions of the witnesses, and despite
the said contradictions and discrepancies in the evidence of
the key witnesses apparent on the face of it, yet the learned
trial judge has passed an order of conviction, which is required
to be interfered with.
3.2 Learned advocate Mr. Pandya submits that while
convicting the appellant-accused, the learned trial court has
given much weightage to the evidence of the Executive
Magistrate who recorded the dying declaration of the
deceased. In his deposition, the said witness has categorically
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stated that he went to the hospital for recording the dying
declaration after 48 hours of the incident, which has not been
taken note of by the learned trial judge. The trial judge has
also erred in appreciating the fact that before giving the dying
declaration to the Executive Magistrate, a history was given to
the doctor by the deceased at the very fist in point of time
when he was brought to the hospital, wherein the deceased
had stated that as he fell down from the terrace, he was hit by
the metal sheet and, therefore, sustained injuries. Even at the
time of giving the Janva Jog entry before the police who was
present over there in the hospital, the same version was given
by the deceased. Subsequently, before the Executive
Magistrate, an altogether a different story was narrated by the
deceased and, thus, there are two contradictory statements
made by the deceased before the different authorities, and in
such a situation, the learned trial judge has to give specific
findings to the effect that from the two different set of
evidences available on record, why a particular piece of
evidence is being given more weightage, discarding another,
which the learned trial judge has failed to do in the present
case, and solely relying upon the dying declaration given
before the Executive Magistrate without thee being any
corroborative piece of evidence to the same, order of
conviction cannot be passed. He submits that in his dying
declaration, the deceased has mentioned that Mukesh had
inflicted a knife blow to him, but which Mukesh, as there are
two accused named as Mukesh. Thus, the said evidence is
also shaky and cannot be relied upon to pass an order of
conviction.
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3.3 Learned advocate Mr. Pandya submits that none of the
circumstances emerging from the record of the case points
towards the guilt of the accused-appellant. According to Mr.
Pandya, the theory of homicidal death due to stab injuries
advanced by the prosecution is not fully established by the
medical evidence on record. Mr. Pandya submits that none of
the circumstances on which reliance has been placed by the
trial Court in convicting the accused-appellant are conclusive
in nature. Mr. Pandya further submits that the prosecution has
cited three witnesses as the eye-witnesses and all those so
called three eye-witnesses are the family members of the
deceased and, therefore, what has been stated by them in
their testimonies cannot be believed as the gospel truth.
Moreover, as per the case of the prosecution, the so called
incident had occurred at a public place in the night hours of
31.12.2001, and generally on the last day of the year, i.e, on
31st December, there is a frequent movement of the people
even in the late night, however, except the interested
witnesses, the prosecution has not examined any independent
witnesses who can be called as the actual eye-witnesses. Mr.
Pandya also submits that the complainant, in his cross-
examination, has admitted the fact that after the incident, at
the very first instance when they took the deceased to the
hospital, they informed the police as well as to the doctor
present over there in the S.S.G. Hospital that as the deceased
went over the roof to adjust the antenna of the T.V., he fell
down from the roof and sustained such an injury being hit by
metal sheet. Even they did not bother to register the FIR on
that day and on 02.01.2002, at the instance of the police, they
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gave a written complaint to the police. The police started
investigation after two to three days from the incident and the
dying declaration of the deceased also came to be recorded
after two to four days from the incident and during that period,
the deceased was in a conscious state of mind. Learned
advocate Mr. Pandya submits that however subsequently they
have changed their version and came with altogether a
different story and stated that the deceased was beaten by the
appellant-accused and he inflicted knife blow to the deceased
following the altercation took place between them on the
fateful day. Learned advocate Mr. Pandya further submits that
the medical officer who treated the deceased has also deposed
in his deposition at Exh.41 that when the deceased was taken
to the hospital, the deceased himself had given history before
him wherein the deceased stated that as he fell down from the
roof, he sustained injuries. Moreover, it is an admitted position
of fact and as averred in the complaint itself that the
complainant side and the accused were having inimical terms
and, therefore, with a view to teach lesson to the accused and
to settle the score, he might have been implicated in the
present crime with a malice. Mr. Pandya also submits that the
dying declaration of the deceased also came to be recorded
after 48 hours from the incident. In his cross-examination, the
said witness PW-14, Exh.43, has admitted that when he
reached to the hospital he straightway went to the deceased
without contacting and obtaining certificate from the
concerned medical officer as regards as to whether the injured
victim was in a full conscious state of mind to give the
statement in a proper manner and, therefore, reliability of the
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said dying declaration is also doubtful as the Executive
Magistrate himself did not follow the prescribed procedure and
thereby committed a grave error. Further, the deceased died
after almost 11 days and as per the deposition of the medical
office at Exh.50 wherein he has stated that the cause of death
of the deceased might be due to 'pus cell and decay' and,
therefore, looking to the evidence of the said vital witness, the
appellant-accused is entitled to get the benefit of doubt. To
bolster his submissions, learned advocate Mr. Pandya relies
upon the following case laws;
i) In the case of Irfan @ Naka vs. State of Uttar Pradesh,
reported in AIR 2023 SC 4129;
ii) In the case of Suchand Pal vs. Phani Pal, reported in
2003 (0) AIJEL-SC 30631;
iii) Phulel Singh vs. State of Haryana, reported in AIR 2023
SC 4653;
iv) In the case of Harisinh Motisinh Jodha vs. State of
Gujarat, Criminal Appeal No.2010 of 2004;
3.4 In such circumstances, referred to above, Mr. Pandya
prays that there being merit in the appeal, the same deserves
to be allowed.
4. CONTENTIONS ON BEHALF OF THE STATE:-
4.1 Ms. Monali Bhatt, learned Additional Public Prosecutor
appearing for the State has vehemently opposed the present
appeal. Ms. Bhatt submits that the trial Court committed no
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error in finding the appellant-accused guilty of the offence of
murder. Ms. Bhatt supported the impugned judgment and
argued that PW Nos.1 to 3 cannot be discredited simply
because they happen to be the brother, mother and sister-in-
law of the deceased and that their statements were very
natural and logical. She further submits that the complainant
in the present case is the eye-witness who claimed to have
witnessed the unfortunate incident. In the present case, the
prosecution has, in all, examined significant witnesses
consisting of the eye-witnesses, doctors, panch witnesses and
the Executive Magistrate as well as also produced the
documentary evidence including the dying declaration of the
deceased. Ms. Bhatt submits that all the eye-witnesses have
very categorically stated in their depositions that the accused
Mukesh Mohanbhai stabbed the deceased with a knife on his
stomach, which is corroborative with the dying declaration,
medical papers and the contents of the FIR. She also submits
that the prosecution has successfully proved its case through
medical evidence and the evidence of the eye-witnesses are
completely supported by the medical evidence and, therefore,
their evidence can be believed to be true. Ms. Bhatt submits
that even in the dying declaration given by the deceased
before the Executive Magistrate, he has specifically given the
name of the appellant-accused as one of the assailants who
inflicted knife blow to him, which also supports the case of the
prosecution. She submits that initially the complainant and his
family members did not disclose the correct fact before the
police and the doctor due to the threats administered by the
accused persons, however, later they gathered the courage
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and registered the FIR by narrating true and correct facts and,
therefore, merely relying upon the initial story given by the
complainant, the entire case of the prosecution cannot be
brushed aside.
4.2 Learned APP Ms. Bhatt submits that it is a settled
proposition of law that when the dying declaration of the
deceased itself is found to be credible, believable and inspires
confidence, then there is no corroborative evidence is required
to establish the guilt of the accused. Admittedly, in the case
on hand, the prosecution has proved its case beyond
reasonable doubt by leading cogent and convincing evidences,
and relying upon piece of evidences, more particularly the
dying declaration given before the Executive Magistrate, the
learned trial judge has rightly passed an order of conviction,
which does not require any interferecne.
4.3 Ms. Bhatt submits that the appellant-accused is a
headstrong person and there was an ongoing enmity between
the complainant side and the accused persons due to some
earlier disputes and, therefore, the fact of incident of quarrel
took place between the accused persons and the deceased on
the fateful day cannot be completely ruled out and the medical
evidence also suggests that there was a stab injury on the
stomach of the deceased which can be caused by some sharp
weapon. Learned APP Ms. Bhatt lastly submits that it is a
settled proposition of law that if the person recording the dying
declaration is satisfied that the declarant is in a fit medical
condition to make a dying declaration, then such dying
declaration will not be invalid solely on the ground that the
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doctor has not certified as to the condition of the declarant to
make the dying declaration. In support of her submission,
learned APP Ms. Bhatt has put reliance upon the following
precedents;
i) In the case of Muthu Kutty & Anr. vs. State by Inspector
of Police, T.N., reported in (2005) 9 SCC 113;
ii) In the case of Atbir vs. State (Govt. Of NCT of Delhi),
reported in 2010 (0) AIJEL-SC 48718;
4.4 In such circumstances, referred to above, Ms. Bhatt prays
that there being no merit in the conviction appeal, the same
deserves to be dismissed.
ANALYSIS
5. I have carefully examined the trial court record, perused
the testimony of the witnesses and the medical evidence and
given my thoughtful consideration to the arguments advanced
by both sides.
6. Before embarking on examining the evidence brought on
record, it may be noted that there is no direct evidence in the
present case to connect the accused with the offence in
question and the case of the prosecution rests solely on
circumstantial evidence. I am saying so because the persons
who are cited as the eye-witnesses are the interested
witnesses who happens to be the real brother, mother and
sister-in-law of the deceased and they have not elaborated the
entire sequence of events of the incident that had taken place
on the fateful day and, therefore, the trial court in the
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impugned judgment itself has made detailed discussion in this
regard and given the findings to the effect that the said
witnesses cannot be termed as the eye-witnesses as they
might have reached to the place of offence immediately after
the occurrence of the incident and the said findings of the trial
court has not been challenged by the prosecution side and
thus has attained finality. Thus, after the said findings of the
trial court rendered in the final judgment whereby the other
co-accused have been acquitted, the entire case of the
prosecution would now become the case based on
circumstantial evidence. Thus, keeping this aspect in mind, it is
necessary to state the law relating to circumstantial evidence.
It is well settled that in a case of circumstantial evidence, the
cumulative effect of all the circumstances proved, must be
such as to negative the innocence of the accused and to bring
home the charge beyond reasonable doubt. [Refer: Prem
Thakur vs. State of Punjab; 1983 Cri.LJ 155, Ram Avtar vs.
State (Delhi Administration); 1985 Cri.LJ 1865 and State of
Tamil Nadu vs. Rajendran; AIR 1999 SC 3535]
7. Let me at the outset, before delving into the issue as
regards the circumstantial evidence, reproduce the excerpt in
the form of a Quote of an American Philosopher from the
judgment of the Hon'ble Apex Court in the case of Ramanand
@ Nandlal Bharti vs. State of Uttar Pradesh, Criminal Appeal
Nos.64-65 of 2022, penned by His Lordship Justice J.B.
Pardiwala, as under;
1. Mark Twain, the great American writer and
philosopher, once said:
"It is like this, take a word, split it up into letters, the
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letters, may individually mean nothing but when
they are combined they will form a word pregnant
with meaning. That is the way how you have to consider
the circumstantial evidence. You have to take all the
circumstances together and judge for yourself
whether the prosecution have established their case."
8. It is well settled that the following conditions must be
fulfilled before a case against an accused based on
circumstantial evidence can be said to be fully established.
(i) The circumstance from which the conclusion of guilt is to be
drawn should be fully established. The circumstances
concerned 'must or should' and not 'may be' established.
(ii) The facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except that
the accused is guilty.
(iii) The circumstances should be of a conclusive nature and
tendency.
(iv) They should exclude every hypothesis but the one to be
proved, and
(v) There must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent with
the innocence of the accused and must show that within all
human probability the act must have been done by the
accused.
9. A case can be said to be proved only when there is
certain and explicit evidence and no person can be convicted
on pure moral conviction.
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10. In Padala Veera Reddy vs. State of Andhra Pradesh & Ors.
reported in 1989 Supp (2) SCC 706, the Supreme Court had
laid down the tests that must be satisfied in a case that rests
upon circumstantial evidence as follows:-
"10. Before adverting to the arguments advanced by the
learned counsel, we shall at the threshold point out that
in the present case there is no direct evidence to connect
the accused with the offence in question and the
prosecution rests its case solely on circumstantial
evidence. This Court in a series of decisions has
consistently held that when a case rests upon
circumstantial evidence such evidence must satisfy the
following tests:-
(1) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly
established;
(2) those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a
chain so complete that there is no escape from the
conclusion that within all human probability the crime
was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of the guilt
of the accused and such evidence should not only be
consistent with the guilt of the accused but should be
inconsistent with his innocence."
11. Keeping in mind the aforesaid principles of law, I shall
now proceed to examine the relevant circumstances that are
appearing in the present case.
12. P.W.No.1-complainant, i.e, the brother of the deceased,
namely, Kishanbhai Ramabhai Marvadi has deposed in his
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examination-in-chief that the incident in question took place on
31.12.2001 at around 11:30 in the night and at that time he
was present over there. He has also deposed that the cause for
occurrence of the incident was due to some past enmity. It has
been further deposed that at the time of the incident, accused
Mukesh Mohanlal was having knife in his hand, accused
Babubhai was having stick accompanied by accused
Rameshbhai Mohanlal Marvadi and accused Mukesh Nemaji
Marvadi. It has also been deposed by the said witness that
accused Mukesh Mohanlal Marvadi, i.e, the appellant inflicted
knife blow to the deceased Kantibhai and, therefore, they took
the deceased to the stairs of the temple where he became
unconscious. Thereafter, the said witness, accompanied by his
mother and one another person, took the deceased Kantibhai
to S.S.G Hospital for treatment where a mob of almost 15 to 20
persons of Marvadi community immediately came at the
hospital and tried to lure the complainant that they will bear
the entire expenses of the deceased likely to be incurred
behind his treatment and threatened him not to register a
complaint, otherwise, the complainant will also have to face
the same consequences. Therefore, for about two days, they
did not register the complaint. It has been further deposed that
then on the next day, they all went to the police station to
register the complaint and explained the delay in registering
the complaint. Thereafter, upon insistence of the police to file
a written complaint, he gave a written complaint to the police.
In his examination-in-chief, the said witness had also identified
the knife used in the commission of the offence.
13. In his cross-examination conducted by the defense
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counsel, the P.W. No.1-complainant has admitted that there
was a civil litigation going on between the accused and the
complainant side and accused Babubhai got the stay in his
favour on the basis of the will and the said suit is still pending.
He has admitted in his cross-examination about the occurrence
of the incident on 31.12.2001. The said witness has also
admitted in his cross-examination that when they took
deceased Kantibhai to the S.S.G. Hospital, at the very first
instance when the police and the doctor present over there
asked about the cause of injuries received by the deceased,
they told them that as there was 31 st December, various year
ended programs were running on the TV and, therefore,
deceased Kantibhai went to the terrace to adjust the antenna
and fell down down from the terrace, due to which, Kantibhai
sustained injuries being hit by metal sheet. He has also
admitted in his cross-examination that the area where they are
residing is a very dense locality and due to 31 st December,
there was a frequent movement of the people and people were
awaken. He has also admitted that the Executive Magistrate
came after two to three days and at that time, his deceased
brother was in a conscious state of mind. The said witness in
his cross-examination has also admitted that in the Exh.18
complaint, he has not stated that the mob of 15 to 20 people
of Marvadi community came to the hospital and threatened
them not to register the complaint and, therefore, they did not
register the complaint on that day. He has also admitted that
his brother was treated as an indoor patient for about 11 to 12
days and he was operated twice due to some medical
complications in the first operation, and after the second
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operation due to septicemia, the health condition of his brother
got more critical. He has also admitted that after the second
operation, within a period of two to four days, his brother had
died.
14. Thus, there are vast discrepancies in the Exh.18
complaint filed by the complainant and his testimony recorded
during the trial. On one hand, in the FIR which can be called as
a report that reaches the police first in point of time, the
complainant has stated that before the occurrence of the
incident in question, there was quarrel between accused
Babubhai and one person of the Marvadi community wherein
the deceased had intervened to segregate them. Thereafter,
after some time, when the deceased was going for urinating
towards the canal, the accused persons stopped him and
started quarreling with the deceased which resulted in foul
play. On the other hand, in his examination-in-chief as also in
his cross-examination, there is no mention about the quarrel
that had taken place just prior to the incident. Further, in his
complaint, the complainant has stated that after the incident,
when his deceased brother was coming towards the house in a
wounded condition, the complainant and his mother rushed to
the deceased and at that point of time, all the accused
already fled away. Contrary to the same, in his examination-in-
chief, at the very outset, the complainant has deposed that he
was present at the time of the incident. Thus, there appears to
be vast contradictions in the evidence of the complainant
itself.
15. PW No.2-Jamnaben, the mother of the deceased and the
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complainant has deposed in his examination-in-chief that they
had a quarrel with accused Babu Samna regarding execution
of will by one Suresh and cross-complaint were filed by them in
this regard. She has further deposed that Mukesh was having
the knife and inflicted blow with the same to his son. She was
present at the time of the said incident. She has also deposed
that all the accused persons came to the hospital along with
the other people and threatened them not to register the
complaint.
16. In his cross-examination, the PW No.2 has admitted that
she and her son Kishan took the deceased Kantibhai to the
hospital and none else was there along with them. She has
also admitted that when they took the deceased to the
hospital, they told the police and the doctor present over there
that as his son went to the terrace, he fell down and sustained
injuries being hit by metal sheet. She has also admitted that
the place where the incident took place was a very dense area.
17. Thus, there appears to be vast contradictions in the
testimonies of the PW No.1 and PW No.2. In the evidence of
the PW No.1, he has stated that mob of 15 to 20 people of
Marvadi community came to the hospital and threatened them
and not the accused persons. whereas the evidence of the PW
No.2 states that all the accused persons came to the hospital
and administered threat to them. She has also deposed that
she was present at the time of the incident whereas in the
complaint, the complainant has stated that they rushed to the
deceased after seeing him coming towards the house.
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18. PW. No.3- Paliben Kishanbhai Marvadi, the sister-in-law of
the deceased has deposed in her examination-in-chief that
accused Mukesh killed the deceased with knife and she had
witnessed the said incident.
19. PW No.3, in her cross-examination, has stated that after
the occurrence of the incident, police came at the place of
offence after 10 to 15 minutes and at that time, police had
interrogated her. She has also stated in her cross-examination
that the quarrel continued for about ten minutes and people
from the vicinity also gathered there.
20. The above evidence of the PW No.3 makes the picture
more clear. She has stated in her cross-examination that after
10 to 15 minutes of the incident, police reached at the place of
occurrence and interrogated her. Now the question that arises
is that when the complaint was registered on the next day,
then how the police could reach at the scene of offence as
there was no compliant registered till that time. Thus, the
version given by the PW No.3 is also contradictory to the
versions given by the PW Nos.1 and 2. Even the PW No.1 in his
cross-examination has stated that on 01.01.2002, neither
police came to the hospital nor they went to the police station.
21. Thus it appears from the above that all the three key
witnesses have given contradictory versions in their
depositions and such contradictions are vast contradictions,
which cannot be ignored while deciding the conviction appeal.
22. PW No.13-Dr. Uday Hriday Prakash Exh.41, who gave the
preliminary treatment to the deceased has stated in his
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examination-in-chief that the deceased was brought to the
hospital at around 12:15 by the complainant. The deceased
was injured and there was a wound on the left side of his
stomach and the patient was in a conscious state of mind at
that point of time. He has further deposed that at that time,
the deceased had given a history before him that as he fell
down from the terrace, he sustained injuries.
23. PW No.14- Jayantilal Manilal Salot-an Executive
Magistrate, Exh.42 has deposed in his examination-in-chief
that he received a Vardhi on 02.01.2002 at around 10:45 in the
night. Therefore, he reached at the S.S.G. Hospital and started
recording the dying declaration of the deceased. The
certificate of the doctor was also obtained. He has further
deposed that the deceased in his dying declaration has stated
that Mukesh had inflicted knife blow to him. However, the said
witness, in his cross-examination has stated that after reaching
the hospital, he did not contact the doctor and straightway
went to the deceased for recording dying declaration. He has
further admitted that after the recording of the dying
declaration, the endorsement of the doctor was obtained.
24. PW No.16- Dr. Hareshbhai Budhabhai Kothari, Exh.50,
who conducted the autopsy has deposed in his examination-in-
chief that when the body of the deceased was brought for the
postmortem, there was a bleeding from the nose and mouth of
the deceased. In his entire examination-in-chief, the said
witness has only disclosed the nature of the injuries, however,
he has specifically stated that number of incised wounds were
found on the body of the deceased having stench septicemia.
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The said witness in his cross-examination has admitted that
except one vertical injury, all those injuries were surgical
injuries. He has also admitted in his cross-examination that the
cause of death given by him is due to increase in the
septicemia which can be happened due to side effects of the
medicine.
25. From the cumulative assessment of the aforesaid
evidences, it appears that the accused and the complainant
side were having some inimical terms as apparent from the
body of the complaint itself and they all were residing in the
same vicinity. The incident alleged to have taken place on
31.12.2001 at a public place at around 11:30 hours in the
night. It appears that in the FIR it is stated that when the
deceased was going for urinating towards the canal, he was
stopped by the accused persons and brutally beaten by them,
however, I am unable to find anywhere in the entire body of
the complaint that whether the complainant was
accompanying the deceased or not and how he came to know
about the occurrence of the incident. It has not been stated
anywhere in the complaint that whether he rushed to the place
of occurrence on some noise of quarrel being heard by him or
whether somebody informed him about the said quarrel. The
complaint is completely silent about the same. The record
further reveals that in the complaint, the complainant has
stated that after the incident, when the deceased was
returning home and slumped on the road, the complainant and
his mother rushed to him and found the deceased wounded
lying on the road, whereas in his examination-in-chief, he has
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stated at the very outset that he was present at the time when
the alleged incident took place. Therefore, there are
contradictory statements made by the complainant in the
complaint and in his examination-in-chief. The postmortem
report (Ex.51) mentions that no other injury was noticed on the
dead body except the wound on the stomach and as per the
case of the prosecution, some altercation took place between
the deceased and the accused persons and there was a free
fight between them. However, the PM report does not reflect
any swelling injuries on the body of the deceased. As per the
PM Note Exh.51, the cause of death is due to " shock following
septicemia following injury", which as per the evidence of the
medical officer recorded by the defense side, can be due to not
lack of proper treatment. Moreover, as per the evidence of the
P.S.I. Shri Jayantilal Manganlal Sharma, Exh.53, initially a Janva
Jog entry was given to the police wherein all the witnesses had
given the information that the deceased went to the roof of the
house to adjust the antenna of the TV and fell down from the
roof due to which he sustained injuries being hit by metal
sheet. The medical officer Dr. Uday Prakash in his deposition at
Exh.41 has also deposed that when the deceased was brought
to the hospital, he stated before him that he fell down from the
roof and sustained the injuries. This Court has also taken note
of the fact that the dying declaration of the deceased came to
be recorded after 48 hours of the incident and in the said dying
declaration he has stated that Mukesh inflicted knife injuries to
him, however, it was not clearly stated by the deceased that
which Mukesh inflicted injuries to him as there are two accused
persons having similar name as Mukesh.
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26. Thus, it appears that all the above referred evidences are
corroborative to each other and predominantly supporting the
case of the defense side and not the prosecution. It is the case
of the prosecution that the alleged incident took place on
31.12.2001 in the night hours and there was a frequent
movement of the people on the road due to last calendar day
of the year. However, not a single independent witness has
been examined by the prosecution. All the witnesses are either
the family members of the deceased or the police witnesses as
well as the medical officers.
27. The next important question is as to whether the
circumstances attending the case establish the guilt of the
accused satisfactorily and unerringly so as to incriminate him
with the crime of murder. The prosecution has heavily relied on
the testimonies of PW Nos. 1 to 3 who are the brother, mother
and sister-in-law of the deceased and has sought to draw an
inference against the guilt of the appellant on the following
circumstances:-
(i) That the appellant-accused had an enmity with the
deceased and his family members due to some earlier
disputes;
(ii) On the fateful day, when the deceased was going for
urinating towards the canal, the accused persons caught the
deceased and started quarreling with the deceased;
(iii) That in the night hours of 31.12.2001, during such quarrel,
the appellant-accused inflicted knife blow to the deceased and
fled from the spot;
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28. Now coming to the argument advanced by the defense
side that the evidences of PW Nos.1 to 3 stand discredited as
they are the interested witnesses, it is a well settled rule of
prudence that the evidence of a related or interested witness
should be examined very meticulously. In circumstances where
the related/interested witness has some enmity with the
accused, then the yardstick for evaluating his evidence should
be more stringent and the scrutiny, doubly so. The law with
regard to appreciation of evidence of a related and/or
interested witness has been explained by the Supreme Court
in Dalip Singh vs. State of Punjab reported as 1954 SCR 145, in
the following words:-
"26. A witness is normally to be considered independent
unless he or she springs from sources which are likely to
be tainted and that usually means unless the witness has
cause, such as enmity against the accused, to wish to
implicate him falsely. Ordinarily, a close relative would be
the last to screen the real culprit and falsely implicate an
innocent person. It is true, when feelings run high and
there is personal cause for enmity, that there is a
tendency to drag in an innocent person against whom a
witness has a grudge along with the guilty, but
foundation must be laid for such a criticism and the mere
fact of relationship far from being a foundation, is often a
sure guarantee of truth. However, we are not attempting
any sweeping generalisation. Each case must be judged
on its own facts. Our observations are only made to
combat what is so often put forward in cases before us as
a general rule of prudence. There is no such general rule.
Each case must be limited to and be governed by its own
facts."
29. In Darya Singh vs. State of Punjab reported in AIR 1965
SC 328, the following are the observations made by the
Supreme Court on evaluation of evidence of an interested
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witness:-
"6. There can be no doubt that in a murder case when
evidence is given by near relatives of the victim and the
murder is alleged to have been committed by the enemy
of the family, criminal courts must examine the evidence
of the interested witnesses, like the relatives of the
victim, very carefully. But a person may be interested in
the victim, being his relation or otherwise, and may not
necessarily be hostile to the accused. In that case, the
fact that the witness was related to the victim or was his
friend, may not necessarily introduce any infirmity in his
evidence. But where the witness is a close relation of the
victim and is shown to share the victim's hostility to his
assailant, that naturally makes it necessary for the
criminal courts examine the evidence given by such
witness very carefully and scrutinise all the infirmities in
that evidence before deciding to act upon it......It may be
relevant to remember that though the witness is hostile
to the assailant, it is not likely that he would deliberately
omit to name the real assailant and substitute in his
place the name of the enemy of the family out of malice.
The desire to punish the victim would be so powerful in
his mind that he would unhesitatingly name the real
assailant and would not think of substituting in his place
the enemy of the family though he was not concerned
with the assault. It is not improbable that in giving
evidence, such a witness may name the real assailant
and may add other persons out of malice and enmity and
that is a factor which has to be borne in mind in
appreciating the evidence of interested witnesses. On
principle, however, it is difficult to accept the plea that if
a witness is shown to be a relative of the deceased and it
is also shown that he shared the hostility of the victim
towards the assailant, his evidence can never be
accepted unless it is corroborated on material
particulars." (emphasis added)
30. In Sarwan Singh v. State of Punjab, reported in (1976) 4
SCC 369, the Supreme Court held as under:-
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"10. ..............The evidence of an interested witness does
not suffer from any infirmity as such, but the courts
require as a rule of prudence, not as a rule of law, that
the evidence of such witnesses should be scrutinised with
a little care. Once that approach is made and the court is
satisfied that the evidence of interested witnesses have a
ring of truth, such evidence could be relied upon even
without corroboration."
31. In Kartik Malhar vs. State of Bihar, reported in (1996) 1
SCC 614, the Supreme Court opined that a close relative who
is a natural witness cannot be regarded as an interested
witness, for the term "interested" postulates that the witness
must have some interest in having the accused, somehow or
the other, convicted for some animus or for some other reason.
32. In Jayabalan v. UT of Pondicherry, reported in (2010) 1
SCC 199, once again, the Supreme Court highlighted the
caution required to be taken in appreciating the evidence
given by the interested witness as under:-
"23. We are of the considered view that in cases where
the court is called upon to deal with the evidence of the
interested witnesses, the approach of the court, while
appreciating the evidence of such witnesses must not be
pedantic. The court must be cautious in appreciating and
accepting the evidence given by the interested witnesses
but the court must not be suspicious of such evidence.
The primary endeavour of the court must be to look for
consistency."
(emphasis added)
33. I may also profitably refer to Raju vs. State of Tamil Nadu,
reported in (2012) 12 SCC 701 where the Supreme Court held
as follows:-
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"24. For the time being, we are concerned with four
categories of witnesses - a third party disinterested and
unrelated witness (such as a bystander or passer-by); a
third party interested witness (such as a trap witness); a
related and therefore an interested witness (such as the
wife of the victim) having an interest in seeing that the
accused is punished; a related and therefore an
interested witness (such as the wife or brother of the
victim) having an interest in seeing the accused punished
and also having some enmity with the accused. But,
more than the categorization of a witness, the issue
really is one of appreciation of the evidence of a witness.
A court should examine the evidence of a related and
interested witness having an interest in seeing the
accused punished and also having some enmity with the
accused with greater care and caution than the evidence
of a third party disinterested and unrelated witness. This
is all that is expected and required."
(emphasis added)
34. A glance at the above decisions makes it clear that the
evidence of an interested and/or related witnesses should not
be examined with a coloured vision simply because of their
relationship with the deceased. Though it is not a rule of law, it
is a rule of prudence that their evidence ought to be examined
with greater care and caution to ensure that it does not suffer
from any infirmity. The court must satisfy itself that the
evidence of the interested witness has a ring of truth. Only if
there are no contradictions and the testimony of the
related/interested witness is found to be credible, consistent
and reasonable, can it be relied upon even without any
corroboration. At the end of the day, each case must be
examined on its own facts. There cannot be any sweeping
generalisation.
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35. At this stage, before I conclude, it is worth noting that the
deceased when brought to the hospital, has stated before the
doctor that as he slumped from the terrace, he sustained such
injuries. Subsequently, before the Executive Magistrate, the
deceased gave altogether a different story. Thus, there are two
contradictory statements/dying declarations of the deceased
on record and the question that arises is whether which one is
to be considered as trustworthy. It is on record that the dying
declaration by the Executive Magistrate was recorded after 48
hours of the incident. Now the question arises what would have
been if the deceased died immediately after being brought to
the hospital. In that case, we would have left with no other
option but to consider the history given by the deceased at the
first in point of time before the doctor as the dying declaration,
wherein he stated that he sustained injuries being hit by metal
sheet when he fell down from the terrace. The factors to be
considered while determining the dying declaration has been
very elaborately discussed by the Hon'ble Apex Court in a
decision penned by His Lordship Justice J.B. Pardiwala in the
case of Irfan @ Naka vs. State of U.P., reported in 2023 SCC
Online SC 1010, the relevant observations of which, are as
follows;
"DYING DECLARATIONS VIS-A-VIS ORAL EVIDENCE OF
THE EYE-WITNESSES ON RECORD
39. The picture that emerges on cumulative assessment
of the materials on record is that the appellant-convict
had strained relationship with his son Islamuddin
(deceased) born in the wedlock of his first marriage with
Ishrat. His relations with his two brothers (deceased
persons) were also strained. The defence put forward by
the appellant-convict is that with a view to grab the
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property, PW-2 Shanu alias Shahnawaz, PW-4 Soni and
others conspired to eliminate the deceased persons and
thereafter, to throw the entire blame on the appellant-
convict of having committed the crime. The incident
occurred in the night hours. The three deceased were
sleeping in one room. The PW-2 and PW-4 are said to
have been sleeping in an adjoining room in the house.
The appellant-convict is said to have locked the door of
the room from outside in which, the deceased persons
were sleeping. He poured inflammable substance in the
room and set the room on fire. The three deceased
persons suffered severe burn injuries and ultimately
succumbed to death. Islamuddin and Irshad are said to
have given their dying declarations before the A.S.I. as
referred to above. Why the dying declaration of Naushad
could not be recorded is not clear. A close perusal of the
two dying declarations indicates that Irshad and
Islamuddin raised alarm on getting severely burnt and
they were taken out of the room by the neighbour. Who
is this neighbour, they are referring to in their dying
declarations is also not clear? At the same time, it is
pertinent to note that the Irshad and Islamuddin in their
respective dying declarations do not say a word about
the presence of the PW-2 Shanu alias Shahnawaz and
PW-4 Soni. Both these witnesses do not figure in the two
dying declarations. It is also pertinent to note that in both
the dying declarations it has been very clearly stated that
after a long time a neighbour came to their rescue and
took them out of the burning room.
40. Keeping the aforesaid in mind, if we look into the oral
evidence of the PW-2 Shanu alias Shahnawaz then
according to him, he along with his sister Soni (PW-4)
noticed fire in the room in which the deceased persons
were sleeping. According to the PW-4, she also witnessed
the appellant- convict pouring kerosene and setting the
room on fire in which, the deceased persons were
sleeping. PW-2 also claims to have witnessed, the
appellant-convict fastening the door latch from outside
and thereafter, running away from that place. In the
same manner, if we closely look into the oral evidence of
the PW-4 Soni, then according to her on seeing the
flames of fire in the room, in which the deceased persons
were sleeping, she immediately opened the door and saw
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that the appellant-convict was running from the roof
towards the stairs. The PW-4 claims that Amzad and
Shafiq also saw the appellant-convict running away.
Amzad and Shafiq have not been examined as the
prosecution witnesses. It is not clear whether police even
recorded the statements of Amzad and Shafiq under
Section 161 of the CrPC?
41. If PW-2 and PW-4 were present at the time when the
room was on fire and it is they who opened the door and
took out the three deceased persons, then why the PW-2
and PW-4 do not figure in the dying declarations of Irshad
and Islamuddin? Why Islamuddin and Irshad said in their
dying declarations that after a long time, the neighbour
came to their rescue and took them out of the room? If a
neighbour came to their rescue, then where were PW-2
and PW-4 at the time of the incident? PW-2 and PW-4
have deposed that they both were sleeping in the room
adjacent to the room in which the deceased persons were
sleeping. This is one very crucial aspect of the matter
which, the prosecution has not been able to explain or
clarify.
42. In such circumstances referred to above, we are left
with either to believe the dying declarations or the oral
evidence of the two so called eye- witnesses to the
incident. It is also important to note that the PW-4 Soni,
in her cross-examination has stated that to the best of
her knowledge, Islamuddin and Naushad had fastened
the latch from inside. If the door of the room, in which the
deceased persons were sleeping was closed from inside,
then how did the appellant-convict manage to open the
door and enter the room so as to set the room on fire as
alleged?
43. The juristic theory regarding the acceptability of a
dying declaration is that such declaration is made in
extremity, when the party is at the point of death and
when every hope of this world is gone, when every
motive to falsehood is silenced, and the man is induced
by the most powerful consideration to speak only the
truth. Notwithstanding the same, great caution must be
exercised in considering the weight to be given to this
species of evidence on account of the existence of many
circumstances which may affect their truth. The situation
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in which a man is on the deathbed is so solemn and
serene, is the reason in law to accept the veracity of his
statement. It is for this reason, the requirements of oath
and cross- examination are dispensed with. Since the
accused has no power of cross- examination, the courts
insist that the dying declaration should be of such a
nature as to inspire full confidence of the court in its
truthfulness and correctness. The court, however, should
always be on guard to see that the statement of the
deceased was not as a result of either tutoring or
prompting or a product of imagination. [See: Laxman v.
State of Maharashtra, (2002) 6 SCC 710]
44. The mode and manner, in which the dying
declarations came to be recorded, is also something
which creates a doubt, as regards its truthfulness and
trustworthiness. Although, the Investigating Officer says
that the recording of the dying declarations was video-
graphed and the CD has been exhibited in evidence yet it
is very important to determine the evidentiary value of
the same.
45. We should also look into the genesis of the
occurrence from a different angle. It is not in dispute that
the three deceased died on account of severe burn
injuries. It is also not in dispute that the room in which
they were sleeping caught fire on account of which they
suffered severe burn injuries. It is also not in dispute that
inflammable substance like kerosene was found from the
room which ignited the fire. However, the moot question
is who set the room on fire? Could it be said that the
prosecution has been able to prove beyond reasonable
doubt that it was only and only the appellant-convict who
set the room on fire by pouring the inflammable
substance?
46. It appears to us that whoever did the act, the
inflammable substance was not directly poured or
sprinkled on the three deceased persons. Had it been so,
they would have immediately woken up and by the time,
the room is sat on fire, they would make good their
escape or catch hold of the culprit. It appears that the
inflammable substance might have been poured on the
floor of the room and thereafter, the fire must have been
ignited. Once, the room is on fire, the person responsible
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for setting the room on fire would immediately leave that
place. We find it very difficult to believe that the
appellant-convict was still inside the room or even
outside the room to be witnessed by the deceased
persons as well as by the PW-2 and PW-4, locking the
room from outside after setting the room on fire. The
conduct of the accused may be unnatural because he
was residing in the very same house, however, the
conduct which may be a relevant fact under Section 8 of
the Indian Evidence Act, 1872 (for short, 'the Act 1872'),
by itself may not be sufficient to hold a person guilty of
the offence of murder.
47. On overall assessment of the materials on record, we
have reached to the conclusion that neither the two
dying declarations inspire any confidence nor the oral
evidence of the PW-2 and PW-4 respectively inspire any
confidence. Had the dying declarations stood
corroborated by the oral evidence of the PW-2 and PW-4,
then probably, it would have been altogether a different
scenario. However, as noted above, the two dying
declarations are not consistent or rather contradictory to
the oral evidence on record.
48. The justification for the sanctity/presumption
attached to a dying declaration, is two fold; (i) ethically
and religiously it is presumed that a person while at the
brink of death will not lie, whereas (ii) from a public
policy perspective it is to tackle a situation where the
only witness to the crime is not available.
49. One of the earliest judicial pronouncements where
the rule as above can be traced is the King's Bench
decision of the King v. William Woodcock reported in
(1789) 1 Leach 500 : 168 ER 352, where a dying woman
blamed her husband for her mortal injuries, wherein
Judge Eyre held this declaration to be admissible by
observing: -
"...the general principle on which this species of
evidence is admitted is, that they are declarations
made in extremity, when the party is at the point of
death and when every hope of this world is gone:
when every motive to falsehood is silent, and the
mind is induced by the most powerful consideration
to speak the truth; a situation so solemn, and so
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awful, is considered by the law as creating
obligation equal to that which is imposed by a
positive oath administered in a Court of Justice. (b)
But a difficulty also arises with respect to these
declarations; for it has not appeared and it seems
impossible to find out, whether the deceased
herself apprehended that she was in such a state of
morality as would inevitably oblige her soon to
answer before her Maker for the truth or falsehood
of her assertions. .... Declarations so made are
certainly entitled to credit; they ought therefore to
be received in evidence: but the degree of credit to
which they are entitled must always be a matter for
the sober consideration of the Jury, under all the
circumstances of the case." (Emphasis supplied)
50. Interestingly, the last observation of Judge Eyre
showcases, even at the inception of this principle, that
the Courts were wary of the inherent weakness of dying
declarations and cautioned for great care to be adopted.
51. It is significant to note the observations made by
Taylor that "Though these declarations, when
deliberately made under a solemn sense of impending
death, and concerning circumstances wherein the
deceased is not likely to be mistaken, are entitled to
great weight, if precisely identified, it should always be
recollected that the accused has not the power of cross
examination, a power quite as essential to the eliciting of
the truth as the obligation of an oath can be, and that,
where a witness has not a deep sense of accountability to
his Maker, feelings of anger or revenge, or, in the case of
mutual conflict, the natural desire of screening his own
misconduct, may effect the accuracy of his statements
and give a false colouring to the whole transaction. ...".
[See: Taylor on "Treatise on the Law of Evidence", 1931,
12th Edition Pg. 462]
52. It is observed in Corpus Juris Secundum Vol XL, Page
1283 that:
"In weighing dying declarations, the jury may
consider the circumstances under which they were
made, as, whether they were due to outside
influence or were made in a spirit of revenge, or
when declarant was unable or unwilling to state the
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facts, the inconsistent or contradictory character of
the declarations, and the fact that deceased has not
appeared and accused has been deprived of the
opportunity to cross- examine him, and may give to
them the credit and weight to which they believe,
under all the circumstances, they are fairly and
reasonably entitled."
53. In India in the relevant provision of Section 32 of the
Act 1872, the first exception to the rule against
admissibility of hearsay evidence, is as under:
"32(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."
54. Jon R. Waltz, American Jurist observed that, "It has
been thought, rightly or wrongly, that Dying Declarations
have intrinsic assurances of trustworthiness, making
cross examination unnecessary. The notion is that a
person who is in the process of dying, and knows it, will
be truthful immediately before departing to meet his
Maker. (Of course, the validity of this hearsay exceptions
is open to some debate. What about the person who is
not deeply religious? What of the person who, as his last
act, seeks revenge by falsely naming a life-long enemy
as his killer? How reliable is the perception and memory
of a person who is dying?)" [See: Waltz, J.R. (1975)
Criminal Evidence, Chicago: Nelson-Hall. pp.75-76]
55. The Privy Council in Neville Nembhard v. The Queen
reported in (1982) 1 AII ER 183, on Section 32(1) of the
Act 1872 opined that the evidence of dying declaration
under the Indian law lacks the special quality as in
Common Law and hence, the weight to be attached to a
dying declaration admitted under Section 32 of the Act
1872 would necessarily be less than that attached to a
dying declaration admitted under the common law rules.
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56. The below cited observations from the decision of
Nembhard (supra) are of significant importance:
"final observation should be made concerning the
cases al ready mentioned that have been decided in
the Court of Appeal for Eastern Africa. It appears
that rule of practice has been developed that when
a dying declaration has been the only evidence
implicating an accused person a conviction usually
cannot be allowed to stand where there had been a
failure to give a warning on the necessity for
corroboration: see for example Pius Jasunga s/o
Akumu v. The Queen (1954) 21 E.A.C.A. 331 and
Terikabi v. Uganda [1975] E.A. 60. But it is
important to notice that in the countries concerned,
the admissibility of a dying declaration does not
depend upon the common law test:
upon the deceased having at the time a settled
hopeless expectation of impending death. Instead
there is the very different statutory provision
contained in section 32 (1) of the Indian Evidence
Act 1872. That section provides that statements of
relevant facts made by a person who is dead are
themselves relevant facts:
"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."
(emphasis added).
In Pius Jasunga s/o Akumu v. The Queen it was
pointed out (for the reason associated with the
italicised words in the subsection) that the weight to
be attached to a dying declaration admitted by
reference to section 32 of the Indian Evidence Act
1872 would necessarily be less than that attached
to a dying declaration admitted under the common
law rules. The first kind of statement would lack
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that special quality that is thought to surround a
declaration made by a dying man who was
conscious of his condition and who had given up all
hope of survival. Accordingly it may not seem
surprising that the courts dealing with such
statements have felt the need to exercise even
more caution in the use to be made of them than is
the case where the common law test is applied."
57. This Court in Muthu Kutty & Anr. v. State by Inspector
of Police, T.N. reported in (2005) 9 SCC 113, while
discussing the decision in Woodcock (supra) referred to
above had cautioned the courts to ensure that a dying
declaration is reliable before relying on it, with the
following observations: -
"13. ... The general principle on which this species
of evidence is admitted is that they are declarations
made in extremity, when the party is at the point of
death and when every hope of this world is gone,
when every motive to falsehood is silenced, and the
mind is induced by the most powerful
considerations to speak the truth; a situation so
solemn and so lawful is considered by the law as
creating an obligation equal to that which is
imposed by a positive oath administered in a court
of justice. These aspects have been eloquently
stated by Eyre, L.C.B. in R. v. Woodcock ((1789) 1
Leah 500 : 168 ER 352). Shakespeare makes the
wounded Melun, finding himself disbelieved while
announcing the intended treachery of the Dauphin
Lewis explain:
"Have I met hideous death within my view,
Retaining but a quantity of life, Which bleeds away
even as a form of wax, Resolveth from his figure
'gainst the fire? What is the world should make me
now deceive, Since I must lose the use of all deceit?
Why should I then be false since it is true That I
must die here and live hence by truth?" (See King
John, Act V, Scene IV) The principle on which dying
declaration is admitted in evidence is indicated in
the legal maxim "nemo moriturus praesumitur
mentire -- a man will not meet his Maker with a lie
in his mouth".
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14. ... The situation in which a person is on the
deathbed is so solemn and serene when he is dying
that the grave position in which he is placed, is the
reason in law to accept veracity of his statement. It
is for this reason that the requirements of oath and
cross-examination are dispensed with. Besides,
should the dying declaration be excluded it will
result in miscarriage of justice because the victim
being generally the only eyewitness in a serious
crime, the exclusion of the statement would leave
the court without a scrap of evidence.
15. Though a dying declaration is entitled to great
weight, it is worthwhile to note that the accused has
no power of cross-examination. Such a power is
essential for eliciting the truth as an obligation of
oath could be. 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 the deceased was not as a result
of either tutoring, or prompting or a product of
imagination. The court must be further satisfied
that the deceased was in a fit state of mind after a
clear opportunity to observe and identify the
assailant. 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. ..." (Emphasis supplied)
58. This Court in Nallapati Sivaiah v. Sub-Divisional
Officer, Guntur, Andhra Pradesh reported in (2007) 15
SCC 465 and Bhajju alias Karan Singh v. State of Madhya
Pradesh reported in (2012) 4 SCC 327 had explained the
meaning and principles of dying declarations upon which
its admissibility is founded, with the following
observations: -
"20. There is a historical and a literary basis for
recognition of dying declaration as an exception to
the hearsay rule. Some authorities suggest the rule
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is of Shakespearian origin. In The Life and Death of
King John, Shakespeare had made Lord Melun utter
"Have I met hideous death within my view,
retaining but a quantity of life, which bleeds away,
... lose the use of all deceit" and asked, "Why
should I then be false, since it is true that I must die
here and live hence by truth?" William
Shakespeare, The Life and Death of King John, Act
5, Scene 4, lines 22-29.
Xxx xxx xxx
22. It is equally well settled and needs no
restatement at our hands that dying declaration can
form the sole basis for conviction. But at the same
time due care and caution must be exercised in
considering weight to be given to dying declaration
inasmuch as there could be any number of
circumstances which may affect the truth. This
Court in more than one decision has cautioned that
the courts have always to be on guard to see that
the dying declaration was not the result of either
tutoring or prompting or a product of imagination. It
is the duty of the courts to find that the deceased
was in a fit state of mind to make the dying
declaration. In order to satisfy itself that the
deceased was in a fit mental condition to make the
dying declaration, the courts have to look for the
medical opinion.
23. It is not difficult to appreciate why dying
declarations are admitted in evidence at a trial for
murder, as a striking exception to the general rule
against hearsay. For example, any sanction of the
oath in the case of a living witness is thought to be
balanced at least by the final conscience of the
dying man. Nobody, it has been said, would wish to
die with a lie on his lips. A dying declaration has got
sanctity and a person giving the dying declaration
will be the last to give untruth as he stands before
his creator.
24. There is a legal maxim "nemo moriturus
praesumitur mentire" meaning, that a man will not
meet his Maker with a lie in his mouth. Woodroffe
and Amir Ali, in their Treatise on Evidence Act state:
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"when a man is dying, the grave position in which
he is placed is held by law to be a sufficient ground
for his veracity and therefore the tests of oath and
cross- examination are dispensed with".
25. The court has to consider each case in the
circumstances of the case. What value should be
given to a dying declaration is left to court, which
on assessment of the circumstances and the
evidence and materials on record, will come to a
conclusion about the truth or otherwise of the
version, be it written, oral, verbal or by sign or by
gestures." (Emphasis supplied)
59. This Court in Bhajju (supra) has observed as under:
"23. The "dying declaration" essentially means the
statement made by a person as to the cause of his
death or as to the circumstances of the transaction
resulting into his death. The admissibility of the
dying declaration is based on the principle that the
sense of impending death produces in a man's
mind, the same feeling as that of a conscientious
and virtuous man under oath. The dying declaration
is admissible upon the consideration that the
declaration was made in extremity, when the maker
is at the point of death and when every hope of this
world is gone, when every motive to file a false suit
is silenced in the mind and the person deposing is
induced by the most powerful considerations to
speak the truth.
Xxx xxx xxx
26. The law is well settled that a dying declaration
is admissible in evidence and the admissibility is
founded on the principle of necessity. ..."
60. Since time immemorial, despite a general consensus
of presuming that the dying declaration is true, they have
not been stricto-sensu accepted, rather the general
course of action has been that judge decides whether the
essentials of a dying declaration are met and if it can be
admissible, once done, it is upon the duty of the court to
see the extent to which the dying declaration is entitled
to credit.
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61. In India too, a similar pattern is followed, where the
Courts are first required to satisfy themselves that the
dying declaration in question is reliable and truthful
before placing any reliance upon it. Thus, dying
declaration while carrying a presumption of being true
must be wholly reliable and inspire confidence. Where
there is any suspicion over the veracity of the same or
the evidence on record shows that the dying declaration
is not true it will only be considered as a piece of
evidence but cannot be the basis for conviction alone.
62. There is no hard and fast rule for determining when a
dying declaration should be accepted; the duty of the
Court is to decide this question in the facts and
surrounding circumstances of the case and be fully
convinced of the truthfulness of the same. Certain factors
below reproduced can be considered to determine the
same, however, they will only affect the weight of the
dying declaration and not its admissibility: -
(i) Whether the person making the statement was in
expectation of death?
(ii) Whether the dying declaration was made at the
earliest opportunity? "Rule of First Opportunity"
(iii) Whether there is any reasonable suspicion to believe
the dying declaration was put in the mouth of the dying
person?
(iv) Whether the dying declaration was a product of
prompting, tutoring or leading at the instance of police or
any interested party?
(v) Whether the statement was not recorded properly?
(vi) Whether, the dying declarant had opportunity to
clearly observe the incident?
(vii) Whether, the dying declaration has been consistent
throughout?
(viii) Whether, the dying declaration in itself is a
manifestation / fiction of the dying person's imagination
of what he thinks transpired?
(ix) Whether, the dying declaration was itself voluntary?
(x) In case of multiple dying declarations, whether, the
first one inspires truth and consistent with the other
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dying declaration?
(xi) Whether, as per the injuries, it would have been
impossible for the deceased to make a dying declaration?
63. It is the duty of the prosecution to establish the
charge against the accused beyond the reasonable
doubt. The benefit of doubt must always go in favour of
the accused. It is true that dying declaration is a
substantive piece of evidence to be relied on provided it
is proved that the same was voluntary and truthful and
the victim was in a fit state of mind. It is just not enough
for the court to say that the dying declaration is reliable
as the accused is named in the dying declaration as the
assailant.
64. It is unsafe to record the conviction on the basis of a
dying declaration alone in the cases where suspicion, like
the case on hand is raised, as regards the correctness of
the dying declaration. In such cases, the Court may have
to look for some corroborative evidence by treating the
dying declaration only as a piece of evidence. The
evidence and material available on record must be
properly weighed in each case to arrive at an appropriate
conclusion. The reason why we say so is that in the case
on hand, although the appellant-convict has been named
in the two dying declarations as a person who set the
room on fire yet the surrounding circumstances render
such statement of the declarants very doubtful.
65. In Sujit Biswas v. State of Assam reported in (2013)
12 SCC 406, this Court, while examining the distinction
between "proof beyond reasonable doubt" and
"suspicion" in para 13 has held as under:
"13. Suspicion, however grave it may be, cannot
take the place of proof, and there is a large
difference between something that "may be"
proved, and something that "will be proved". In a
criminal trial, suspicion no matter how strong,
cannot and must not be permitted to take place of
proof. This is for the reason that the mental
distance between "may be" and "must be" is quite
large, and divides vague conjectures from sure
conclusions. In a criminal case, the court has a duty
to ensure that mere conjectures or suspicion do not
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take the place of legal proof. The large distance
between "may be" true and "must be" true, must
be covered by way of clear, cogent and
unimpeachable evidence produced by the
prosecution, before an accused is condemned as a
convict, and the basic and golden rule must be
applied. In such cases, while keeping in mind the
distance between "may be" true and "must be"
true, the court must maintain the vital distance
between mere conjectures and sure conclusions to
be arrived at, on the touchstone of dispassionate
judicial scrutiny, based upon a complete and
comprehensive appreciation of all features of the
case, as well as the quality and credibility of the
evidence brought on record. The court must ensure,
that miscarriage of justice is avoided, and if the
facts and circumstances of a case so demand, then
the benefit of doubt must be given to the accused,
keeping in mind that a reasonable doubt is not an
imaginary, trivial or a merely probable doubt, but a
fair doubt that is based upon reason and common
sense."
66. It may be true as said by this Court, speaking through
Justice Krishna Iyer in Dharm Das Wadhwani v. State of
Uttar Pradesh reported in (1974) 4 SCC 267, that the rule
of benefit of reasonable doubt does not imply a frail
willow bending to every whiff of hesitancy. Judges are
made of sterner stuff and must take a practical view of
the legitimate inferences flowing from the evidence,
circumstantial or direct. Even applying this principle, we
have a doubt as regards the complicity of the appellant-
convict in the crime.
67. In the present case, it is difficult to rest the conviction
solely based on the two dying declarations. At the cost of
repetition, the PW-2 has been otherwise also not believed
by the High Court.
68. As discussed above, the oral evidence of the PW-4
Soni, also does not inspire any confidence. We are not
satisfied that the prosecution has proved its case against
the appellant-convict beyond reasonable doubt."
36. In the aforesaid judgment, the Hon'ble Apex Court has
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summarized the categories of the dying declarations when to
be considered as truthful. It is observed that there is no hard
and fast rule for determining when a dying declaration should
be accepted; the duty of the Court is to decide this question in
the facts and surrounding circumstances of the case and be
fully convinced of the truthfulness of the same. I would like to
again reproduce that excerpts of the judgment where the
Hon'ble Apex Court has highlighted the factors to be kept in
mind while determining the truthfulness of the dying
declaration, as under :-
"(i) Whether the person making the statement was in
expectation of death?
(ii) Whether the dying declaration was made at the
earliest opportunity? "Rule of First Opportunity"
(iii) Whether there is any reasonable suspicion to believe
the dying declaration was put in the mouth of the dying
person?
(iv) Whether the dying declaration was a product of
prompting, tutoring or leading at the instance of police or
any interested party?
(v) Whether the statement was not recorded properly?
(vi) Whether, the dying declarant had opportunity to
clearly observe the incident?
(vii) Whether, the dying declaration has been consistent
throughout?
(viii) Whether, the dying declaration in itself is a
manifestation / fiction of the dying person's imagination
of what he thinks transpired?
(ix) Whether, the dying declaration was itself voluntary?
(x) In case of multiple dying declarations, whether, the
first one inspires truth and consistent with the other
dying declaration?
(xi) Whether, as per the injuries, it would have been
impossible for the deceased to make a dying
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declaration?"
37. In the instant case, there can be said to be two dying
declarations of the deceased on record, and both the dying
declarations are not consistent with each other. They both are
contradictory in nature. Further, it was recorded after 48 hours
of the incident and, therefore, cannot be said to be at the
earliest opportunity. Thus, it can safely be said that the
evidence in the form of dying declaration in the present case
does not fall in any of the above categories enumerated by the
Hon'ble Apex Court so as to inspire any confidence to hold the
appellant-accused guilty of the offence.
38. Further, in the case on hand, there are in all total four
accused persons named in the FIR. They all have been tried
together on the selfsame evidences. However, at the end of
the trial, though the evidences against all the accused persons
are similar, the trial court, after considering the same, has
reached to a discriminating conclusion by acquitting the three
other co-accused and convicting appellant-accused. The law is
well settled in this regard that when there is similar or identical
evidence of eyewitnesses against two accused by ascribing
them the same or similar role, the court cannot convict one
accused and acquit the other. In such a case, the cases of both
the accused will be governed by the principle of parity. Which
means that the criminal court should decide like cases alike,
and in such cases, the Court cannot make a distinction
between the two accused, which will amount to discrimination.
To further elaborate the above position, I would like to refer to
and rely upon the recent past decision of the Hon'ble Supreme
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Court in the case of Javed Shaukat Ali Qureshi vs. State of
Gujarat, reported in 2023 SCC Online SC 1155, wherein while
deciding an appeal challenging the judgment of the High Court
whereby the Court convicted some of the accused, while
acquitting others, the Division Bench of Abhay S. Oka and
Sanjay Karol, JJ. has acquitted the convict by setting aside the
judgment of the Trial Court as well as the judgment of the
High Court, by observing thus;
"15. When there is similar or identical evidence of
eyewitnesses against two accused by ascribing them the
same or similar role, the Court cannot convict one
accused and acquit the other. In such a case, the cases of
both the accused will be governed by the principle of
parity. This principle means that the Criminal Court
should decide like cases alike, and in such cases, the
Court cannot make a distinction between the two
accused, which will amount to discrimination.
16. As far as accused nos.3 and 4 are concerned, they did
not prefer any appeal. In the case of Pawan Kumar vs.
State of Haryana, (2003) 11 SCC 241 this Court dealt
with similar contingency in some detail. This Court held
that the jurisdiction under Article 136 of the Constitution
of India can be invoked in favour of the party even suo
moto when the Court is satisfied that compelling ground
for its exercise exists. However, such suo moto power
should be used very sparingly with caution and
circumspection. The Court held that the power must be
exercised in the rarest of the rare cases.
17. Accused nos. 1,5 and 13 were convicted only on the
basis of the testimony of PW25 and PW26. They were
acquitted by holding that the testimony of both witnesses
was unreliable and deserved to be discarded. If the same
relief is not extended to accused nos. 3 and 4 by reason
of parity, it will amount to violation of fundamental rights
guaranteed to accused nos. 3 and 4 by Article 21 of the
Constitution of India. Therefore, we have no manner of
doubt that the benefit which is granted to accused nos.
1,5 and 13 deserves to be extended to accused nos.3 and
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4, who did not challenge the judgment of the High Court.
In this case, the suo motu exercise of powers under
Article 136 is warranted as it is a question of the liberty
of the said two accused guaranteed by Article 21 of the
Constitution.
18. Now, we come to the case of accused no.2. By the
order dated 11th May 2018, a special leave petition filed
by accused no.2 was summarily dismissed without
recording any reasons. The law is well settled. An order
refusing special leave to appeal by a nonspeaking order
does not attract the doctrine of merger. At this stage, we
may refer to a three judge Bench decision of this Court in
the case of Harbans Singh v. State of U.P. & Ors., (1982)
2 SCC 101 In paragraph 18, this Court held thus:
"18.To my mind, it will be a sheer travesty of justice and
the course of justice will be perverted, if for the very
same offence, the petitioner has to swing and pay the
extreme penalty of death whereas the death sentence
imposed on his co-accused for the very same offence is
commuted to one of life imprisonment and the life of the
coaccused is shared (sic spared). The case of the
petitioner Harbans Singh appears, indeed, to be
unfortunate, as neither in his special leave petition and
the review petition in this Court nor in his mercy petition
to the President of India, this all important and significant
fact that the life sentence imposed on his co accused in
respect of the very same offence has been commuted to
one of life imprisonment has been mentioned. Had this
fact been brought to the notice of this Court at the time
when the Court dealt with the special leave petition of
the petitioner or even his review petition, I have no doubt
in my mind that this Court would have commuted his
death sentence to one of life imprisonment. For the same
offence and for the same kind of involvement,
responsibility and complicity, capital punishment on one
and life imprisonment on the other would never have
been just. I also feel that had the petitioner in his mercy
petition to the President of India made any mention of
this fact of commutation of death sentence to one of life
imprisonment on his co accused in respect of the very
same offence, the President might have been inclined to
take a different view on his petition." (emphasis added)
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19. We have found that the case of accused no 2 stands
on the same footing as accused nos. 1,5 and 13 acquitted
by this Court. The accused no.2 must get the benefit of
parity. The principles laid down in the case of Harbans
Singh (supra) will apply. If we fail to grant relief to
accused no 2, the rights guaranteed to accused no.2
under Article 21 of the Constitution of India will be
violated. It will amount to doing manifest injustice. In
fact, as a Constitutional Court entrusted with the duty of
upholding fundamental rights guaranteed under the
Constitution, it is our duty and obligation to extend the
same relief to accused no.2. Therefore, we will have to
recall the order passed in the special leave petition filed
by accused no.2." (Emphasis added).
39. In the instant case, it is the case of the prosecution that
before the incident in question, there was a fight between the
accused Babubhai and one person belonging to Marvadi
community, and at that time, the brother of the complainant,
i.e, the deceased intervened and tried to segregate them. After
such a row, the said Babubhai along with the appellant-
accused and one another Mohan was standing there and when
the deceased Kantibhai was going for urinating towards the
canal, they stopped him and started beating him and in the
said quarrel appellant-accused inflicted knife blow to the
deceased. If that was the case of the prosecution, then the
evidence of the said witness with whom accused Babubhai had
a quarrel just before the occurrence of the incident in question
had to be recorded and he had to be examined by the
prosecution, which the prosecution has miserably failed to do
in the present case. A mere fight between the accused and the
deceased on the fateful day over a petty issue cannot be
treated as an acceptable evidence to prove that there was a
serious quarrel between the accused and the deceased which
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led the appellant-accused to kill the deceased. Except the PW
Nos.1 to 3, there is no independent witness who has seen the
fight allegedly taken place between the accused persons and
the deceased. Learned defense counsel is therefore justified in
stating that in the above circumstances, the sole testimonies
of the PW Nos.1 to 3, without any independent corroboration,
cannot lead to an irresistible inference that it was the
appellant-accused who inflicted the knife blow. The picture is
so foggy in the present case. There is no independent witness
who has come fore to depose that he had seen the incident.
Even the complainant has not stated that he had seen the
appellant-accused inflicting knife injuries. What he has stated
in the complaint is that after the incident when they saw his
deceased brother coming towards the home and fell down on
the road they rushed to him and by that time, the assailants
were fled away. Contradictory to what has been stated in the
complaint, the complainant, in his examination-in-chief, has
deposed that he was present there at time of the incident.
40. No doubt, a family has lost its loved one in the present
case, but the pivotal issue remains as to whether the totality of
the circumstances unerringly point a finger at the appellant-
accused as the real culprit and none else. The circumstances
indicated by the learned APP do create a suspicion against the
appellant-accused but the point is whether those
circumstances would be sufficient to hold that he was guilty of
this crime. In my opinion, the distance between "may be true"
and "must be true" has not been satisfactorily traversed by the
prosecution to establish an unbroken link between the
appellant-accused and the crime. One must be mindful of the
NEUTRAL CITATION
R/CR.A/722/2007 CAV JUDGMENT DATED: 23/09/2024
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fact that no one can be convicted on the basis of a mere
suspicion however strong such a suspicion may be. [See:
Palvinder Kaur vs. State of Punjab AIR 1952 SC 354;
Chandrakant Ganpat Sovitkar vs. State of Maharashtra (1975)
3 SCC 16; Sharad Birdhichand Sarda vs. State of Maharashtra
(1984) 4 SCC 116; Padala Veera Reddy (supra) and State of
Uttar Pradesh vs. Wasif Haider & Ors. 2018 SCC OnLine SC
2740]
41. I am therefore of the view that the circumstances
appearing in the present case when examined in the light of
the above legal principles, do not lead to an inevitable and
decisive conclusion that the appellant-accused had committed
the murder of the brother of the complainant. As the
prosecution has not been able to dispel the cloud of doubt as
to the culpability of the appellant-accused, I am inclined to
extend him the benefit of doubt.
42. Resultantly, the present appeal succeeds and is hereby
allowed. The impugned judgment of conviction dated
22.02.2007 passed by the learned Addl. Sessions Judge,
Vadodara in Sessions Case No.230 of 2002 is quashed and set
aside and the appellant-accused is ordered to be acquitted of
all the charges. Since the appellant-accused is on bail pending
trial, the bail bonds furnished by him stands discharged.
(DIVYESH A. JOSHI,J)
VAHID
