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PETITIONER:

KOLI CHUNILAL SAVJI & ANR.

Vs.

RESPONDENT:

STATE OF GUJARAT

DATE OF JUDGMENT: 29/09/1999

BENCH:

G.B.Pattanaik, N.Santosh Hedge, M.Srinivasan

JUDGMENT:

PATTANAIK, J.

These two appeals arise out of Judgment dated

21/24.6.1996 of the High Court of Gujarat at Ahmedabad in

Criminal Appeal Nos. 236 and 105 of 1989 and are being

disposed of by this common Judgment. The two appellants

were tried for having committed an offence under Section

302/34 IPC on the allegation that on 28.6.84 at 4 A.M.,

while deceased Dhanuben was sleeping on her bed, the two

accused persons namely her husband and mother-in-law poured

kerosene and set fire with match box. Along with the

deceased, her son Ajay was also there and both, the deceased

and Ajay were burnt. They were taken to the hospital for

treatment. In the hospital, Police recorded the statement

of Dhanuben which was treated as F.I.R. and then after

registering the case, investigation started. In the

hospital, both Dhanuben and her son Ajay died and as such

the accused persons stood charged for offence under Sections

498A and 302/34 of the IPC. Apart from the statement by

deceased Dhanuben to PW 14, which was treated as F.I.R., a

Magistrate also recorded her statement which was treated as

a dying declaration. On scrutiny of the prosecution

evidence, the learned Sessions Judge did not rely upon the

dying declaration made by the deceased Dhanuben and in the

absence of any other evidence to connect the accused

appellants with the murder of the deceased, acquitted them

of the charge under Section 302/34 IPC. The learned

Sessions Judge however came to the conclusion that the

offence under Section 498A has been established beyond

reasonable doubt and as such convicted them under the said

Section and sentenced them to rigorous imprisonment for two

years and imposed a penalty of Rs.250/-, in default, further

imprisonment for two months. The State of Gujarat preferred

an appeal against the acquittal of the accused persons of

the charge under Section 302/34 IPC and the accused persons

preferred appeal against their conviction under Section

498A. The High Court by the impugned Judgment set aside the

order of acquittal, relying upon the two dying declarations

Exh. 45 and Exh. 41 and convicted the appellants of the

charge under Section 302/34 IPC and States appeal was

allowed. The appeal filed by the accused persons, assailing

their conviction under Section 498A however stood dismissed

and the conviction under Section 498A and the sentence

passed thereunder was maintained. It may be stated that

while admitting the appeal of the accused persons against

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their conviction under Section 498A, the High Court had suo

motu issued notice as to why the sentence imposed for the

offence punishable under Section 498A should not be

enhanced. But while disposing of the criminal appeals, the

High Court did not think it proper to enhance the sentence

and accordingly notice of enhancement stood discharged.

On the basis of the post-mortem report conducted on

the dead bodies of Dhanuben and her son Ajay and the

evidence of doctor PW9, who conducted the autopsy over the

dead bodies, the conclusion is irresistible that both the

persons died on account of burn injuries but the defence

however raised a contention that the two persons died on

account of suicide and the house was set fire by the

deceased herself. The prosecution witnesses to whom

deceased had made oral dying declaration, implicating the

accused persons, did not support the prosecution during

trial and, therefore, with the permission of the Court the

Public Prosecutor cross- examined them. The High Court

accordingly, placed no reliance on their testimony. The

High Court however examined the two dying declarations

namely Exh.45, recorded by the Sub-Inspector PW14 and the

dying declaration Exh.41, recorded by the Magistrate PW12

and came to the conclusion that both these dying

declarations are truthful and voluntarily made and,

therefore, can safely form the basis of conviction of the

accused persons under Section 302/34 IPC. With the

aforesaid conclusion the order of acquittal passed by the

learned Sessions Judge of the charge under Section 302/34

was set aside and the accused appellants were convicted of

the said charge and were sentenced to imprisonment for life.

The High Court also relying upon the dying declaration and

other materials, further came to the conclusion that the

prosecution case, so far as the charge under Section 498A

IPC is concerned, has been proved beyond reasonable doubt

and, therefore, upheld the conviction and sentence passed

thereunder by the learned Sessions Judge.

Mr. Keshwani, the learned counsel appearing for the

appellants argued with vehemence that the two dying

declarations cannot be relied upon inasmuch as the doctor

was not present while the dying declaration was recorded by

the Magistrate and further, there is no endorsement by the

doctor, indicating the mental condition of the deceased to

the effect that she was in a fit condition to make the

statement. The learned counsel also further urged that the

doctor himself has not been examined in this case which

makes the position worse. Mr. Keshwani also made a

submission that the deceased was surrounded by her own

relations before the dying declaration was recorded by the

Magistrate and as such had sufficient opportunity to be

tutored and consequently the dying declaration recorded by

the Magistrate becomes vitiated. Mr. Keshwani also

submitted that the incident having taken place at 4 A.M.

and the dying declaration having been recorded by the

Magistrate at 9 A.M., five hours after the occurrence, there

has been gross delay which makes the dying declaration

doubtful and as such should not have been accepted. Mr.

Keshwani lastly submitted that the learned Sessions Judge

having recorded an order of acquittal, the same should not

have been interfered with by the High Court without

justifiable reasons and on this score also the conviction of

the appellants under Section 302/34 IPC cannot be sustained.

The learned counsel appearing for the respondent

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State, on the other hand submitted that the dying

declaration which has been relied upon by the High Court in

the facts and circumstances, has been rightly held to be

truthful and voluntary one and, therefore, in law, can form

the sole basis of conviction. She also contended that

though endorsement of the doctor and presence of the doctor

is ordinarily looked for but merely on that score the dying

declaration recorded by the Magistrate cannot be held to be

an untruthful one. Besides, the learned counsel submitted

that the doctor did make an entry in the Police yadi,

indicating that the deceased was in a fit condition to make

any statement and it is he, who took the Magistrate to the

deceased and non-endorsement by the doctor on the statement

recorded by the Magistrate cannot be held to be fatal nor

can any doubt arise on that score. The learned counsel

further contended that the power of the High Court against

an order of acquittal is the same as against an order of

conviction and while setting aside an order of acquittal, it

is necessary for the Appellate Court to look at the

reasoning given by the trial Judge and be satisfied whether

those reasoning are just and proper or not. The reasoning

given by the learned Sessions Judge to discard the two dying

declarations having been found by the High Court to be

wholly unreasonable and, therefore, the High Court was fully

entitled to interfere with the conclusion of the learned

Sessions Judge and no infirmity can be found out on that

score.

Coming to the affirmation of conviction under Section

498A, while Mr. Keshwani, appearing for the accused

appellants submitted that on this scanty evidence, the

Courts could not have convicted the accused persons of the

said charges, the learned counsel for the respondent

submitted that both the Courts have analysed the evidence

fully and having found that the charge under Section 498A

IPC has been proved beyond reasonable doubt, question of

interfering with the said conviction does not arise.

In view of the rival submissions made at the Bar, two

questions really arise for our consideration. (1) Whether

the two dying declarations can be held to be true and

voluntary and can be relied upon or can be excluded from

consideration for the infirmities pointed out by Mr.

Keshwani, appearing for the appellants. (2) Whether the

High Court exceeded its jurisdiction in interfering with the

order of acquittal, recorded by the learned Sessions Judge.

Coming to the first question, the answer to the same

would depend upon the correctness of the submission of Mr.

Keshwani, that in the absence of doctor while recording the

dying declaration, the said declaration loses its value and

cannot be accepted. Mr. Keshwani in this connection relies

upon the decision of this Court in the case of Maniram vs.

State of Madhya Pradesh, AIR 1994 SC 840. In the aforesaid

case, no doubt this Court has held that when the declarant

was in the hospital itself, it was the duty of the person

who recorded the dying declaration to do so in the presence

of the doctor and after duly being certified by the doctor

that the declarant was conscious and in senses and was in a

fit condition to make the declaration. In the said case the

Court also thought it unsafe to rely upon the dying

declaration on account of aforesaid infirmity and interfered

with the Judgment of the High Court. But the aforesaid

requirements are mere a rule of prudence and the ultimate

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test is whether the dying declaration can be held to be a

truthful one and voluntarily given. It is no doubt true

that before recording the declaration, the concerned officer

must find that the declarant was in a fit condition to make

the statement in question. In Ravi Chander and Ors. vs.

State of Punjab, 1998 (9) SCC 303, this Court has held that

for not examining the doctor, the dying declaration recorded

by the Executive Magistrate and the dying declaration orally

made need not be doubted. The Court further observed that

the Executive Magistrate is a disinterested witness and is a

responsible officer and there is no circumstance or material

on record to suspect that the Executive Magistrate had any

animus against the accused or in any way interested in

fabricating the dying declaration and, therefore, the

question of genuineness of the dying declaration recorded by

the Executive Magistrate to be doubted does not arise. In

the case of Harjit Kaur vs. State of Punjab 1994(4) SCALE

447, this Court has examined the same question and held:

..As regards the condition of Parminder Kaur, the

witness has stated that he had first ascertained from the

doctor whether she was in a fit condition to make a

statement and obtained an endorsement to that effect.

Merely because that endorsement was made not on the Dying

Declaration itself but on the application, that would not

render the Dying Declaration suspicious in any manner.

In view of the aforesaid decisions of this Court, we

are unable to accept the submission of Mr. Keshwani that

the two dying declarations cannot be relied upon as the

doctor has not been examined and the doctor has not made any

endorsement on the dying declaration. With regard to the

condition of the deceased, the Magistrate who recorded the

dying declaration has been examined as a witness. She has

categorically stated in her evidence that as soon as she

reached the hospital in the Surgical Ward of Dr. Shukla,

she told the doctor on duty that she is required to take the

statement of Dhanuben and she showed the doctor the Police

yadi. The doctor then introduced her to Dhanuben and when

she asked the doctor about the condition of Dhanuben, the

said doctor categorically stated that Dhanuben was in a

conscious condition. It further appears from her evidence

that though there has been no endorsement on the dying

declaration recorded by the Magistrate with regard to the

condition of the patient but there has been an endorsement

on Police yadi, indicating that Dhanuben was fully

conscious. In view of the aforesaid evidence of the

Magistrate and in view of the endorsement of doctor on the

Police yadi and no reason having been ascribed as to why the

Magistrate would try to help the prosecution, we see no

justification in the comments of Mr. Keshwani that the

dying declaration should not be relied upon in the absence

of the endorsement of the doctor thereon. In this

particular case, the police also took the statement of the

deceased which was treated as F.I.R., and the same can be

treated as dying declaration. The two dying declarations

made by the deceased at two different point of time to two

different persons, corroborate each other and there is no

inconsistency in those two declarations made. In this view

of the matter, we have no hesitation to come to the

conclusion that the two dying declarations made are truthful

and voluntary ones and can be relied upon by the prosecution

in bringing home the charge against the accused persons and

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the prosecution case must be held to have been established

beyond reasonable doubt. Consequently, we have no

hesitation in rejecting the first submission of Mr.

Keshwani. In this connection, it may be appropriate for us

to notice an ancillary argument of Mr. Keshwani that there

has been an inordinate delay on the part of the Magistrate

to record the dying declaration and, therefore, the same

should not be accepted. As we find from the records, the

incident took place at 4 A.M. and the Magistrate recorded

the dying declaration at 9 A.M., in our opinion, it cannot

be said that there has been an inordinate delay in recording

the statement of the deceased. Mr. Keshwani had also urged

that when the Magistrate recorded the dying declaration, the

deceased had been surrounded by her relations and,

therefore, it can be assumed that the deceased had the

opportunity of being tutored. But we fail to understand how

this argument is advanced inasmuch as there is no iota of

evidence that by the time the Executive Magistrate went, the

deceased was surrounded by any of her relations. No doubt

the Magistrate herself has said that three or four persons

were there near the deceased whom she asked to go out but

that they were the relations of the deceased, there is no

material on record. We, therefore, have no hesitation to

reject the said submission of Mr. Keshwani.

Coming now to the second question, the law is well

settled that the power of the High Court while sitting in

appeal against an order of acquittal is the same, as the

power while sitting in appeal against the conviction and the

High Court, therefore would be fully entitled to

re-appreciate the materials on record and in coming to its

own conclusion. The only compulsion on the part of the

Appellate Court is to bear in mind the reasons advanced by

the learned Sessions Judge, while acquitting the accused and

indicate as to why those reasons cannot be accepted. This

being the parameter for exercise of power while entertaining

an appeal against the order of acquittal and in view of our

conclusion and finding that the two dying declarations were

truthful ones and voluntarily made, we see no infirmity with

the impugned judgment of the High Court in setting aside an

order of acquittal. On going through the Judgment of the

Sessions Judge, we find that the learned Sessions Judge

erroneously excluded the two dying declarations from purview

of consideration and therefore, the High Court was justified

in interfering with the order of acquittal. If the order of

acquittal is based upon the grounds not sustainable, the

Appellate Court would be justified in interfering with the

said order of acquittal. Consequently, we are of the

opinion that in the facts and circumstances of the present

case, the High Court was fully justified in interfering with

the order of acquittal recorded by the Sessions Judge and as

such the conviction of the appellant under Section 302/34

IPC is unassailable. Coming to the question of conviction

under Section 498A IPC, as has been stated earlier, the

learned Sessions Judge also convicted the appellant of the

said charge and the High Court on re-appreciation, has

affirmed the conviction and sentence passed thereunder and

nothing has been brought to our notice to take a contrary

view. In the net result, therefore, these appeals fail and

are dismissed.