Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.735 OF 2014

(@SPECIAL LEAVE PETITION (CRL.) No.9184 of 2008)

BABUBHAI BHIMABHAI BOKHIRIA

& ANR. ..... APPELLANTS

VERSUS

STATE OF GUJARAT & ORS. .... RESPONDENTS

J U D G M E N T

Chandramauli Kr. Prasad

Before we proceed to consider the case,

we must remind ourselves the maxim “ judex

damnatur cum nocens absolvitur ” which means

that a Judge is condemned when guilty person

escapes punishment. But, at the same time, we

cannot forget that credibility of the justice

delivery system comes under severe strain when

a person is put on trial only for acquittal.

Page 2 2

By Order dated 8

th

December, 2011, Veja

Prabhat Bhutia was added as petitioner no. 2.

He was an accused in the case and his

grievance was that due to pendency of the

present petition filed by petitioner Babubhai

Bhimabhai Bokhiria, his trial has been stayed

and he is unnecessarily rotting in jail. This

judgment shall, therefore, will have no

bearing on him and the expression

“petitioner/appellant” in this judgment would

mean petitioner no.1/appellant no.1 Babubhai

Bhimabhai Bokhiria.

Shorn of unnecessary details, facts

giving rise to the present petition are that

one Mulubhai Gigabhai Modhvadiya was murdered

on 16

th

of November, 2005 and for that a case

was registered at Kalambaug Police Station,

Porbandar, under Section 302, 201, 34, 120B,

465, 468 and 471 of the Indian Penal Code and

Section 25 of the Arms Act. Police after

usual investigation submitted the charge-sheet

Page 3 3

and the case was ultimately committed for

trial to the Court of Session. When the trial

was so pending, the wife of the deceased filed

an application for further investigation under

Section 173(8) of the Code of Criminal

Procedure (hereinafter referred to as ‘the

Code’), alleging petitioner’s complicity in

the crime, inter alia, stating that the

petitioner was a business rival of the

deceased whereas one of the main accused is

his business partner with whom he conspired to

kill the deceased. It was alleged that

petitioner was a Minister earlier from the

party which was in power in the State and

therefore, he was let off during

investigation. It was also pointed out that a

letter written almost a year ago by the

deceased was recovered from his purse in which

it was stated that in the event of his death,

the petitioner shall be held responsible as he

intended to kill him. In reply to the said

application, the Investigating Officer filed

Page 4 4

his affidavit stating therein that during the

course of investigation, nobody supported the

plea of the wife that the deceased was

apprehending any threat from the petitioner or

for that matter, any other person. In another

affidavit filed by the Investigating Officer,

a firm stand was taken that no material had

surfaced to show the complicity of the

petitioner in the offence. It was pointed out

by the Investigating Officer that the deceased

filed an application for arms licence and in

that application also he did not disclose any

threat or apprehension to his life from any

person, including the petitioner herein.

Notwithstanding the aforesaid affidavit of the

Investigating Officer, the Sessions Judge

directed for further investigation. In the

light of the aforesaid, the investigating

agency submitted further report stating

therein that the call records of the period

immediately preceding the death of the

deceased do not show any nexus between him and

Page 5 5

the petitioner and the deceased did not have

any threat from the petitioner. In this way,

the police did not find the complicity of the

petitioner in the crime.

During the course of trial of other

accused, 134 witnesses were examined and at

that stage, an application was filed by the

son of the deceased praying for arraigning the

petitioner as an accused in exercise of power

under Section 319 of the Code. Said

application was allowed by the learned

Sessions Judge on its finding that prima facie

strong evidence exists to summon the

petitioner as the letter recovered from the

deceased incriminated him. It was also

observed that the veracity of the letter

recovered from the deceased was established by

two witnesses who confirmed that the letter

was in the handwriting of the deceased.

Aggrieved by the aforesaid order, the

petitioner preferred Special Criminal

Page 6 6

Application No. 638 of 2008 before the High

Court of Gujarat. The High Court by its order

dated 11

th

December, 2008 dismissed the said

application inter alia observing as follows:

“7. In view of the material placed

before the Court, selected by the

parties, and in absence of

comprehensive and panoramic view of

the entire evidence led before the

Court in respect of the heinous

crime wherein Section 120-B of

I.P.C. is clearly alleged, it would

be hazardous to record an opinion

different from the opinion formed

by the Court conducting the case.

It is emphasized in the most recent

judgment dated 07.11.2008 of the

Supreme Court in Hardeep Singh v.

State of Punjab [Criminal Appeal

No. 1750-1751/2008], after

reference to most of the previous

judgments on the issue and

reiterating the ration in Bholu Ram

v. State of Punjab (2008) 9 SCC

140, that the primary object

underlying Section 319 is that the

whole case against all the accused

should be tried and disposed of not

only expeditiously but also

simultaneously. Justice and

convenience both require that

cognizance against the newly added

accused should be taken in the same

case and in the same manner as

against the original accused. In

view of the principles laid down by

the Supreme Court as adumbrated

hereinabove and in view of the

Page 7 7

further guidelines called for by

the recent referring judgment, it

would be improper to interfere with

the impugned order, particularly

when even the State and the

prosecution has supported the

application at Ex. 225 below which

the impugned order was made.”

It is in these circumstances, the

petitioner has preferred this special leave

petition and assails the aforesaid order.

Leave granted.

Before we proceed to deal with the

evidence against the appellant and address

whether in light of the evidence available,

power under Section 319 of the Code was validly

exercised, it would be expedient to understand

the position of law in this regard. The issue

regarding the scope and extent of powers of the

court to arraign any person as an accused during

the course of inquiry or trial in exercise of

Page 8 8

power under Section 319 of the Code has been set

at rest by a Constitution Bench of this court in

the case of Hardeep Singh v. State of Punjab,

2014 (1) SCALE 241 . On a review of the

authorities, this Court summarised the legal

position in the following words:

“98. Power under Section 319

Cr.P.C. is a discretionary and an

extra-ordinary power. It is to be

exercised sparingly and only in

those cases where the circumstances

of the case so warrant. It is not

to be exercised because the

Magistrate or the Sessions Judge is

of the opinion that some other

person may also be guilty of

committing that offence. Only where

strong and cogent evidence occurs

against a person from the evidence

led before the court that such

power should be exercised and not

in a casual and cavalier manner.

99. Thus, we hold that though only

a prima facie case is to be

established from the evidence led

before the court not necessarily

tested on the anvil of Cross-

Examination, it requires much

stronger evidence than mere

probability of his complicity. The

test that has to be applied is one

which is more than prima facie case

as exercised at the time of framing

of charge, but short of

satisfaction to an extent that the

Page 9 9

evidence, if goes unrebutted, would

lead to conviction. In the absence

of such satisfaction, the court

should refrain from exercising

power under Section 319 Cr.P.C……..”

Section 319 of the Code confers power on

the trial court to find out whether a person

who ought to have been added as an accused has

erroneously been omitted or has deliberately

been excluded by the investigating agency and

that satisfaction has to be arrived at on the

basis of the evidence so led during the trial.

On the degree of satisfaction for invoking

power under Section 319 of the Code, this Court

observed that though the test of prima facie

case being made out is same as that when the

cognizance of the offence is taken and process

issued, the degree of satisfaction under

Section 319 of the Code is much higher.

Having summarised the law on the degree

of satisfaction required by the courts to

summon an accused to face trial in exercise of

power under Section 319 of the Code, we now

Page 10 10

proceed to consider the submissions advanced by

the learned counsel. It is common ground that

the only evidence that the trial court has

relied to summon the appellant to face the

trial is the note written by the deceased in

his own handwriting apprehending death at the

appellant’s hand. The same reads as follows:

“Date: 18.11.2004

I, Mulubhai Modhvadiya write this

note that the then Irrigation

Minister Babubhai Bokhiriya @

Babulal want to kill me due to

personal differences with me.

Therefore I inform to the State and

to the police by this note that

whenever I die, then I request to

do thorough investigation because

phone calls are coming threatening

to kill me. If I will make

complaint today then he will by

using his influence destroy the

complaint, therefore I am keeping

this note in my purse and I am

clearly stating that If I will die

due to murder then my murder will

be done by Babu Bokhiriya only, if

dumb government listen to my note

than take strict action against

Babu Bhokhiriya and my soul will be

pleased. I am also giving my

finger print on this letter and

also signing under it. Therefore

you have no doubt about it.

Page 11 11

Yours sincerely

Sd/-

(Mulubhai Modhvadiya)”

It is an admitted position that all those

who were put on trial have now been acquitted

by the trial court.

Mr. V.A. Bobde, learned Senior Counsel

appearing on behalf of the appellant submits

that in the course of trial of an offence, when

it appears from the evidence that any person,

not being the accused, has committed any

offence for which such person could be tried

together with the accused facing trial, the

court may proceed against such person for the

offence which he appears to have committed. He

points out that the power under Section 319 of

the Code can be exercised when it appears from

the evidence that any person not being the

accused, has committed any offence. In his

submission, the evidence would obviously mean

the evidence admissible in law. He submits

Page 12 12

that the note allegedly recovered from the

deceased expresses mere apprehension of death

and, therefore, it is inadmissible in evidence

and does not come within the ambit of Section

32 of the Evidence Act (hereinafter referred to

as “the Act”). He further submits that the

note does not relate to the cause of death nor

it describes any circumstance that led to his

death. It has also been pointed out that the

note recovered is also not relevant under

Section 32 of the Act as it has no proximity

with the event of his death, as the same was

written over a year ago.

Dr. A.M. Singhvi, learned senior counsel

appearing for Respondent No.2, however, submits

that any statement – written or verbal, made

under an expectation of death is relevant under

Section 32 of the Act and need not necessarily

be followed by death immediately. He submits

that the letter recovered from the deceased

discloses a relevant fact as the same has been

Page 13 13

made under apprehension of death and relates to

its cause. Though he admits that the letter

was written over a year ago, it is his

contention that it can still be taken into

consideration as it is not necessary to have

immediate nexus between the words written and

the death. In support of the submission,

reliance has been placed on a decision of this

Court in the case of Rattan Singh v. State of

Himachal Pradesh, 1997 (4) SCC 161 wherein it

has been held as follows:

“15. ……..The collocation of the

words in Section 32(1)

“circumstances of the transaction

which resulted in his death” is

apparently of wider amplitude than

saying “circumstances which caused

his death”. There need not

necessarily be a direct nexus

between “circumstances” and death.

It is enough if the words spoken by

the deceased have reference to any

circumstance which has connection

with any of the transactions which

ended up in the death of the

deceased. Such statement would also

fall within the purview of Section

32(1) of the Evidence Act. In other

words, it is not necessary that

such circumstance should be

proximate, for, even distant

Page 14 14

circumstances can also become

admissible under the sub-section,

provided it has nexus with the

transaction which resulted in the

death………………”

We have given our thoughtful

consideration to the rival submissions and the

first question which falls for our

determination is whether the note in question

is admissible in evidence or in other words,

can be treated as a dying declaration under

Section 32 of the Act. Section 32 of the Act

reads as follows:

“32.Cases in which statement of

relevant fact by person who is dead

or cannot be found, etc., is

relevant.- Statements, written or

verbal, of relevant facts made by a

person who is dead, or who cannot

be found, or who has become

incapable of giving evidence, or

whose attendance cannot be procured

without an amount of delay or

expense, which under the

circumstances of the case, appears

to the Court unreasonable, are

themselves relevant facts in the

following cases:

(1) when it relates to

cause of death .-When the

statement is made by a

Page 15 15

person as to the cause of

his death, or as to any of

the circumstances of the

transaction which resulted

in his death, in cases in

which the cause of that

person's death comes into

question.

xxx xxx xxx”

From a plain reading of the aforesaid

provision, it is evident that a statement of a

fact by a person who is dead when it relates to

cause of death is relevant. It is an exception

to the rule of hearsay. Any statement made by

a person as to the cause of his death or as to

any of the circumstances of the transaction

which resulted in his death is relevant in a

case in which the cause of death of the person

making the statement comes into question.

Indian law has made a departure from the

English law where the statements which directly

relate to the cause of death are admissible.

General expressions suspecting a particular

individual not directly related to the occasion

of death are not admissible when the cause of

Page 16 16

death of the deceased comes into question. In

the present case, except the apprehension

expressed by the deceased, the statement made

by him does not relate to the cause of his

death or to any circumstance of the transaction

which resulted in his death. Once we hold so,

the note does not satisfy the requirement of

Section 32 of the Act. The note, therefore, in

our opinion, is not admissible in evidence and,

thus, cannot be considered as such to enable

exercise of power under Section 319 of the

Code.

The Privy Council had the occasion to

consider the meaning of the expression

“circumstances of transaction” used in Section

32 of the Act in the case of Pakala

Narayanswami v. Emperor, AIR 1939 PC 47 and on

page 50 held as follows:

“………The statement may be made

before the cause of death has

arisen, or before the deceased has

any reason to anticipate being

killed. The circumstances must be

Page 17 17

circumstances of the transaction :

general expressions indicating fear

or suspicion whether of a

particular individual or otherwise

and not directly related to the

occasion of the death will not be

admissible……………”

Aforesaid view had been approved by this

Court in Shiv Kumar v. State of Uttar Pradesh,

(Criminal Appeal No. 55 of 1966, decision dated

29

th

July, 1966), wherein it was held as under:

“It is clear that if the statement

of the deceased is to be admissible

under this section it must be a

statement relating to the

circumstances of the transaction

resulting in his death. The

statement may be made before the

cause of death has arisen, or

before the deceased has any reason

to anticipate being killed, but

general expressions indicating fear

or suspicion whether of a

particular individual or otherwise

and not directly related to the

occasion of the death will not be

admissible. A necessary condition

of admissibility under the section

is that the circumstance must have

some proximate relation to the

actual occurrence. For instance, a

statement made by the deceased that

he was proceeding to the spot where

he was in fact killed, or as to his

Page 18 18

reasons for so proceeding, or that

he was going to meet a particular

person, or that he had been invited

by such person to meet him would

each of them be a circumstance of

the transaction, and would be so

whether the person was unknown, or

was not the person accused. The

phrase “circumstances of the

transaction” is a phrase that no

doubt conveys some limitations. It

is not as broad as the analogous

use in “circumstantial evidence”

which includes evidence of all

relevant facts. It is on the other

hand narrower than ‘ res gestae’

[See Pakala Narayana Swami v. The

King Emperor, AIR 1939 PC 47]. As

we have already stated, the

circumstance must have some

proximate relation to the actual

occurrence if the statement of the

deceased is to be admissible under

s.32(1) of the Evidence Act……….”

(underlining ours)

This Court in the case of Sharad

Birdhichand Sarda v. State of Maharashtra, 1984

(4) SCC 116, after review of a large number of

decisions of the Privy Council, various High

Courts and the Supreme Court, endorsed the view

taken by the Privy Council in Pakala

Narayanswami (supra) in the following words:

Page 19 19

“21. Thus, from a review of the

authorities mentioned above and the

clear language of Section 32(1) of

the Evidence Act, the following

propositions emerge:

(1) Section 32 is an exception to

the rule of hearsay and makes

admissible the statement of a

person who dies, whether the death

is a homicide or a suicide,

provided the statement relates to

the cause of death, or exhibits

circumstances leading to the death.

In this respect, as indicated

above, the Indian Evidence Act, in

view of the peculiar conditions of

our society and the diverse nature

and character of our people, has

thought it necessary to widen the

sphere of Section 32 to avoid

injustice.”

All these decisions support the view which

we have taken that the note written by the

deceased does not relate to the cause of his

death or to any of the circumstances of the

transaction which resulted in his death and

therefore, is inadmissible in law.

Now we revert to the authority of this

Court in Rattan Singh (supra) relied on by Dr.

Page 20 20

Singhvi. In the said case, the deceased

immediately before she was fired at, spoke out

that the accused was standing nearby with a

gun. In a split second the sound of firearm

shot was heard and in a trice her life snuffed

off. In the said background, this Court held

that the words spoken by the deceased have

connection with the circumstance of transaction

which resulted into death. In the case in

hand, excepting apprehension, there is nothing

in the note. No circumstance of any

transaction resulting in the death of the

deceased is found in the note. Hence, this

decision in no way supports the contention of

Dr. Singhvi.

The other evidence sought to be relied

for summoning the appellant is the alleged

conversation between the appellant and the

accused on and immediately after the day of the

occurrence. But, nothing has come during the

course of trial regarding the content of the

Page 21 21

conversation and from call records alone, the

appellant’s complicity in the crime does not

surface at all.

From what we have observed above, it is

evident that no evidence has at all come during

the trial which shows even a prima facie

complicity of the appellant in the crime. In

that view of the matter, the order passed by

the trial court summoning the appellant, as

affirmed by the High Court, cannot be allowed

to stand.

To put the record straight, Mr. Bobde has

raised various other contentions to show that

the appellant cannot be put on trial, but in

view of our answer to the aforesaid

contentions, we deem it inexpedient to either

incorporate or answer the same.

Page 22 22

In the result, we allow this appeal and

set aside the order of the trial Court

summoning the appellant to face trial and the

Order of the High Court affirming the same.

……………………………………………………………… J

(CHANDRAMAULI KR. PRASAD)

……………………………………………………………… J

(PINAKI CHANDRA GHOSE)

NEW DELHI,

APRIL 3, 2014.

Page 23 23