Padmaben Shamalbhai Patel v. State Of Gujarat

Judgment

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 326 of 1979.

- From the Judgment and Order dated 4.5.1979 of the Gujarat High Court in Criminal Appeal No. 389 of 1976.

T.U. Mehta, P.H. Parekh and Ms. Geetanjali Mathrani for the Appellant.

D.A. Dave, Anip Sachthey and B.R. Jad for the Respondent. The following Order of the Court was delivered:

The appellant was charged under Section 302 I.P.C. for causing murder of Gangaben, her brother’s wife, in the early hours of 11th June, 1975 by pouring kerosene on her person and setting her aflame. The marriage had taken place with Jayantilal, the brother of the appellant, hardly three months before the incident in question. On the date

‘of the incident the deceased was in the husband’s house when the unfortunate incident took place. On hearing the cries a neighbour Prahladbhai went to the house and found that the deceased was inside the kitchen. He pushed opened the door and saw the deceased aflame. The said Prahladbhai, Bhanubhai, the brother of the appellant, and others took her to Shardaben Hospital for treatment. They reached the casualty department at about 6.45 a.m. and thereafter she was admitted to the Burns-Ward as an indoor patient at about 6.50 a.m. Within five minutes thereafter PW 5 Dr. Kiritkumar Solanki examined her. While taking her case-history he enquired of the injured as to what had happened. The injured replied ‘my nanad (sister-in-law) burnt me”. He prescribed certain medicines , noted the case-history and thereafter instructed the nurse. PW 4 Pankajben, to give the treatment. Dr. Solanki was incharge of the Burns-Ward at the relevant time as PW 2. Dr. Suresh Ambvani, was absent. Dr. Ambvani arrived at about 8.30 a.m. in the ward and examined the patient. After noting

-her pulse, etc., he asked- her how she had received the burns. She told him that she had been burnt. On further questioning she stated that her husband’s sister had burnt her. Dr. Ambvani thereupon asked her the name of her husband’s sister which she disclosed as Padma, the appellant before us. Dr. Ambvani later made a note about the infor-

__ Imation divulged by the victim on the police ‘yadi’ which was received

92 ‘SUPREME COURT REPORTS [199i] 1 S.C.R. ;

at about 2.45 p.m. to ascertain if the victim was in a fit condition to make a dying declaration.

After the victim was brought to the hospital a teléphone message was sent to Madhupura Police Station. The investigating officer in the course of investigation recorded the panchnama of the scene of occurrence at about 10.15 a.m. The panchnama shows that the residence of the victim was on the first floor. In the outer room pieces of burnt clothes and a peeled skin piece were found. To the south thereof was the kitchen which was smelling of kerosene. Pieces of buint clothes were also lying in that kitchen. There was a primus with a burner and broken match box soiled with water lying alongside certain garments, namely, two blouses, two petti-coats and two half bufnt sarees. There was water on the floor.

‘Inspector Nagori claims to have interrogated the accused on the same day but arrested her on the next day at about 5:00 p.m. The investigation thereafter proceeded in usual course and ultimately the appellant came to be charged as stated above.

The prosecution mainly relies on the eviderice of the two medical men PW 2 Dr. Ambvani and PW 5 Dr. Solaiki. In addition thereto reliance is placed on the evidence of the two nurses PW 3 Rukshmaniben and PW 4 Pankajben. The neighbour PW 7 Prahladbhai was also examined but he turned hostile. On an appreciation of the evidence of these witnesses the learned City Sessions Judge, Ahmedabad, canie to the conclusion that this was a case of homicidal death. That conclusion has been confirmed by the High Court and has not been contested before us. With regard to the evidence of the two medical iieni the trial judge . concluded that there wa’ no reason to doubt their testimony since the satne was corroborated by the contemporaneous entries made by them in the case paper and the police ‘yadi’. Taking note of the evidence of PW 1 Dr. Purohit who performed the post-mortem and the evidence of PW 5 Dr. Solanki, he came to the conclusion that the victim was in a position to speak. Having regard to the fact that she had 90% of burhs, her puilse was 130, respiration was 20 and her general condition was not good, he concluded, relying on the decisions of this Court in Balak Rami & Anr. v. State of U.P., [1975] 1 SCR 753 (1975 Crl. Appeals Reporter 39) and Lallubhai v. State of Gujarat,

[1971] 3 SCC 767 (1972 Cri. L.J. 628) that the deceased couid siot be in a fit state of mind when she iiade the dying declaration. He thought it unsafe to place implicit reliance on the said evidence particularly

[| because it was the appéllant’s conterition: that she was not on good i

P.S. PATEL v. STATE OF GUJARAT 93 termis with ler brother i. e. the husband of thé deceased. The learned trial Judge also thought that the possibility of tutoring coiild not be ruled out. In this view, that he took, he gave the beriefit of doubt to the appellant and acquitted her.

The State feeling aggrieved, filed an appeal, being Criminal Appeal No. 389 of 1976, which was heard and decided by a Division Bench of the High Court of Gujarat on 4th May, 1979. The High Cotitt on a re-appreciation of the prosecution evidence concluded that the view taken by the learned Sessions Judge was thoroughly untenable. The High Court pointed out that two main reasons which weighed with the learned Sessioris Judge for acquitting the appellant were—‘“(i) that the deceased had not the requisite mental condition so as to make acceptable dying declaration: and (ii) that her fiusband ‘was vety much near the cot of the deceased, and hence, the possibility of tutoring the deceased cannot be ruled out”. The High Court closely examined both these reasons and concluded that they could not be supported by the evidericé on record. Being conscious of the fact that while dealing with an acquittal appeal, the High Court should give due weight to the views of the trail court of the question of credibility of the prosecution eviderice and should not lightly interfere with its appreciation, it carefully scrutinized the evidence, particularly in regard to the two otal dying declarations, and concluded that there was no possibility of tutoring rior was the deceased mentally unfit to make the dying declarations. In that view of the matter it reversed the order of acquittal, coiivicted the appellant of inurdei and sentenced her to life imprisoiiment. .

Mr. Mehta, the ledrned counsel for the appellant, has taken us through the entire evidence as well the case law on which the leatned trial Judge has based his ordet of acqitittal. Hé also invited our attention to a number of decisions of this Court ih support of his conteitioti that the High Court ought not to have interfered with the order of acquittal. According to him the High Court should Have given due tegatd to the appreciation of evidence by the ‘trial cout and shoiild not have lightly brushed aside its concliision of facts. Cotinsel submitted that an order of acquittal streiigthens the presumption of irinocence which should not be dislodged unless the appellate court comes to the coriclusion that the trial court has commitied a manifest ertor of judgment resulting i in miscartiage of justice. His submission was that this Court should approach the question by ing uiririg if the High Court had adhered to the Well-settled principle that if two views are posible and the trial court accepts one view which tie High Coiirt considers less probable, the High Court wiil tot reverse tiie itial coiitt: Lastly He

94 SUPREME COURT REPORTS {1991] 1 S.C.R.

. contended that although a conviction can be based solely on a dying declaration, courts should be slow to accept a dying declaration as true where it is not recorded in question and answer form and is cryptic-in nature, since it isa piece.of evidence not tested by cross-examination. The weight to be attached to a dying declaration must largely depend on whether or not the deceased was a fit state of mind to make it and since in the present case the trial court had ruled against the prosecytion, the High Court was not justified in reversing the trial court, more so because it was doubtful if she could speak at all having regard t¢ the burns on her lips and tongue. In support of his submissions he cited a host of decisions of this Court but it is unnecessary to refer to them as - on principle there can be no dispute with the propositions of law stated by the appellant’s counsel. We have given our anxious considerations to these submissions but we are afraid we cannot accede to them because in the facts of the present case we are satisfied that the High Court would have failed in its duty if it had not reversed the decision of the trial court.

The evidence on record shows that the marriage had taken place hardly three months before the incident. Even on the appellant’s own showing her relations with the deceased were not strained. The appellant is the only sister of the husband of the deceased. The word ‘nanad’ means the husband’s sister. Therefore, when the deceased told PW 5 Dr. Solanki that her ‘nanad’ had set her on fire, she meant the appellant and none else. The evidence of nurse PW 4 Pankajben corroborates the evidence of Dr. Solanki. Both these witnesses have deposed

“that the deceased was in a fit state of mind and was able to speak, elbeit with difficulty. If there was any doubt on the question of identity it was cleared by PW 2, Dr. Suresh Ambvani to whom the deceased gave the name of her tormentor as Padma. The learned Sessions Judge, also came to the conclusion that notwithstanding the extensive -burns the patient was conscious and was able to speak at the time she made the dying declarations. Her condition soon deteriorated and by 2.45 p.m. she was not in a position to make any statement to the police as recorded by PW 2 Dr. Ambvani on the police‘yadi’. Dr. Ambvani had, however, recorded what the patient had told him. Therefore, besides the oral evidence of the two medical-men there are contemporaneous documents which go to show that the deceased made the statements in question. Even the learned Sessions Judge did not doubt the correctness ot truth of what both the medical-men deposed but in his view the deceased was not mentally fit when she named the appellant. .

It is well-settled by a catena of cases that a dying declaration is o™ tye

P.S. PATEL v. STATE OF GUJARAT a)

admissible it evidence on the principle of necessity and can form the basis for conviction if it is found to be réliable. While it is in the nature Of afi éxception to the general rule forbidding hearsay evidertce, it is admitted on the premiss that ordinarily a dying person will not falsely implicate ani innocent person in the commission of a serious crime. It is

- this premiss which is considered strong enough fo set off the need that the maker of thé statement should state so on oath and be crossexamined by the person who is sought to be implicated. In order that & dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person makitig it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence— neither extra strong nor weak—and can be acted upon without corroboration if it is found to be otherwise true and reliable. In‘the present case there can be no doubt that the deceased had an opportunity to see her tormentor as the incident happened in broad day light. Since the incident occurred in the early hours of the day there was the possibility of a family member being involved. There being no dispute that death was homicidal, the question is who did it? As no relative from the side of her parents was present, the possibility of tutoring by. them must be | ruled out. The theory that her husband prompted her to name the appellant because his relations with the appellant were strained must. be brushed aside as devoid of merit. Except the appellant’s statement in this behalf, there is no other evidence—no such foundation was laid in the cross-examination of the investigating officers. Since it is conceded that the appellant’s relations with the deceased were not bad, it

_is difficult to understand why the latter should falsely involve her, assuming her husband did prompt her, and allow her real tormentor to escape. Since the appellant is the only sister of her husband, there remains no doubt about the indentity of the ‘nanad’ (husband’s sister or sister-in-law). Doubt, if any, is removed by PW 2 Dr. Ambvani’s evidence to whom she disclosed the name ‘Padma’. Both the medicalmen were conscious about her condition and, therefore, they would not have attached any importance to her statement if they had any doubt about her mental capacity. Even Mr. Mehta had to concede that he was not in a position to say that the two medical-men were motivated in giving false evidence.

96 - SUPREME COURT REPORTS [1991] 1 S.C_R.

Mr. Mehlita, however, contended that apart froin thie fact that the appellant had 90% burns, tier pulse rate was high and she had ;espiratory difficulty, the evidence of PW 5 Dr. Solanki shows that he had prescribed morphine injection and, therefore, by the time PW 2 Dr. | Ambvani examined her she could not be in a concious state to make the dying declaration to hini. In this connection he relied on the statement of PW 4 Pankajben who stated that she had given the treatment prescribed by Dr. Solanki. Mr. Mehta, however, overlooks PW 4 Pankajben’s categorical statément that she had jiot given any injection to the victim. On the other hand the other nurse PW 2 Rukshmaniben deposed that she had given the morphine injection intravenously, after Dr. Amnibvani left the ward. Therefore, this submission has no merit.

Mt. Mehta then submitted that having regard to the fact that the victim had 90% burns and her general condition was poor, it would be hazardous to hold that her statements to the two medical-men were true. He also argued that she had burns on her lips and her tongue was swollen making it doubtful if she could talk. We do not think there is any merit in this submission. In Suresh v. State of M.P., [1987] 2 SCC 32 this Court was required to deal with a more or less similar situation. In that case the victim had sustained 100% burns of the second degree and het dying declaration was recorded by Dr. Bhargava in the hospital. Dr. Bhatgava had deposed that the victim was in a fit state of health. The evidence; however, disclosed that while Dr. Bhargava was recording het Statement the victim had started going into a coma. Yet this Court accépted the dying declaration made by the victim to Dr. Bhargava. Therefore, the mere fact that she had suffered 90% burns and her genefal condition was poor is no reason to discard the testimony of both the medical-men when they say that she was inea fit state of mind and was able to make the dying declaration in gdestion.

Lastly, the contention that since the dying declarations were not in question and answet form they must be discarded altogethét 4¢ not. correct. Dr. Solanki-had merely asked the patient how she was burtit to record the history of her case. the victim answered by stating that her ‘nanad’ (husband’s sister) had burnt her. Dr. Ambvani too had merely tried to ascertain from the deceased how she was burnt and it was only after she stated that she was burnt by her sister-in-law that he tried to find the name of her tormentor. In these citcumstances we do not think that the failure on the part of the medical-men to record her statements in question and answer form can in any maniier affect the ptobative value to be attached to their evidence. In Rabi Chandra Padhati & Ors. v. Staie of Orissa, [1980] 1 SCC 240 at p. 244 this Court

~<

P.S. PATEL v. STATE OF GUJARAT 97 merely stated that the dying declaration should preferably be in the question and answer form. That would be so when the statement of the victim is sought to be recorded as a dying declaration, But in the instant case as seen from the evidence of both the medical- -men they merely questioned her for the limited purpose of stating the history of the case. Even otherwise having regard to her condition they could not have questioned her in detail. In such circumstances the fact of the statements being cryptic is understandable. See Bankey Lal y. State of

[1971] 3 SCC 184. We, therefore, do not think that it would be reasonable to discard the prosecution evidence in regard to the dying declaration on such slender grounds.

In the result we see no merit in this appeal and dismiss the same. The appellant will submit to her bail within fifteen days from today. Bail bond will stand cancelled.

R.P. Appeal dismissed.

c