Shaileshbhai @ Pappu Balubhai Chunara & Anr. v. State of Gujrat

DIPAK MISRA, J. 1. In this appeal, by special leave, the assail is to the judgment of conviction and order of sentence dated 02/05/2012 passed by the High Court of Gujarat at Ahmedabad in Criminal Appeal No. 1644 of 2005,·whereby the Division Bench, placing reliance on the dying declaration of the deceased Champaben, has affirmed the decision of the learned Trial Judge, who had found the accusedappellants guilty of offence punishable under Section 302/34, 332 and 114 of the Indian Penal Code, 1860 (for short, "the IPC").

¶2The broad essential facts, which need to be stated for the adjudication of this appeal, are that the deceased, Champaben, was staying with her mother-in-law, brother-in-law and children in a hut near the Water Tank, Macchipir Area, Baalvatika, Ahmedabad and the said hut was sold off by her mother-in-law. The said transaction had brought the deceased Champaben and her children to a miserable state of penury and eventually they were forced to live on the footpath. As alleged, the mother-in-law and brother-in-law had left them in the lurch and went to live elsewhere. On 13.12.2001, as per the case of the prosecution, the accused-appellants attacked her and gave her fist and kick blows and then A-3, namely, Chinabhai caught hold of her and Balubhai Hemabhai Chunara poured kerosene and set her ablaze. A-2, Shailesbhai @ Pappu Balubhai Chunara, aided and abetted the offence. On the basis of the statement made by the deceased on 13.12.2001, the criminal law was set in motion and accused persons were arrested. The dying declarations of Champaben were recorded regard being had to her sinking condition. Eventually, she succumbed to her injuries on 22.12.2001.

¶3After completing the investigation, the prosecution laid the chargesheet under Sections 302/34, 323 and 114 of the IPC before the competent Court which in turn committed the matter to the Court of Session. The learned Sessions Judge, on the basis of the evidence brought on record and placing reliance on the dying declarations of Champaben, convicted the accused persons and imposed the sentence. Suffice it to say, all of them were convicted under Section 302/34 IPC, apart from separate sentence imposed under Sections 323 and 114 of the IPC. The learned trial Judge repelled the plea of the defence that there were three dying declarations and there was manifest inconsistency and hence, they did not deserve acceptance.

¶4On an appeal being preferred; the High Court adverted at length to the legal acceptability of the dying declarations and found that there was actually no inconsistency and accordingly affirmed the judgment of conviction and order of sentence.

¶5We have heard Dr. Sumant Bharadwaj learned counsel for the appellants and Ms. Hemantika Wahi learned counsel for the State.

¶6There is no dispute that the conviction has been recorded on the sole basis of the dying declaration. As the material brought record woule reveal, on the date of occurrence, the deceased was immediately taken to L.G. Hospital, where initially she was treated by Dr. Sandip, PW-2, and there is an endorsement in the case papers that "alleged history of burns over body by Shailesbhai Chunara's friends at Water tank, Baalvatika." After the said endorsement, the treatment commenced and about 3.15 p.m. she was taken to Dr. Kunjan Patel, who recorded the history of injuries and noted that she had,suffered severe burn injuries being burnt by three persons, namely, Balubhai Hemabhai, Shailesbhai Balubhai and Chinabhai Balubhai. Thereafter, a dying declaration was recorded a.fter the investigating agency requisitioned I the presence of Executive Magistrate, namely, Binodbhai Mafatbhai Patel (PW-3). On a. perusal of the said dying declaration, we find that Dr Kunjan Patel had certified that patient was conscious and fit for making a dying declaration. The Executive Magistrate has recorded the dying declaration in the questionnaire form wherein the deceased had clearly stated that she had a quarrel with the accused-appellants and they had caused burn injuries on her legs, chest and other part of the body. The learned Magistrate has also deposed that he had taken care that no one else was present at the time of recording of the dying declaration.

¶7Mr. Bharadwaj learned counsel for the appellant attacking the acceptability of the dying declaration has urged that when there are more than one dying declaration, and inconsistency is perceptible, the Court should be extremely careful before placing reliance on it. To bolster the said submission he has drawn inspiration from the decisions in Lella Srinivasa Rao v. State of A.P1, Amo/ Singh v. State of Madhya Pradesh 2, Sharda v. State of Rajasthan3 and State of Rajasthan v. Shara van Ram & Anr. 4•

¶8In Lella Srinivasa Rao (supra) the Court, appreciating the evidence on record, noticed that there was inconsistency between the two dying declarations and, therefore, thought it unsafe to base the conviction on the basis of the second dying declaration. It is apt to state here that in the said case, in the first dying declaration there was no mention about the appellant having treated the deceased with cruelty or of his having caused harassment to the deceased. That apart, the Court noticed that his name did not find place in the relevant portion 1. (2004) 9 sec 713.

¶2(2008) 5 sec 469.

¶3c2010) 2 sec 85.

¶4(2013) 12 sec 255.

of the first dying declaration though the said dying declaration was recorded by a Magistrate after taking all precautions.

¶9In Amo/ Singh (supra) the Court noticed c~rtain inconsistencies between one dying declaration and the other. In that context, it was opined that the Court has to examine the nature of the inconsistencies, namely, whether they are material or not and while scrutinizing the contents of various dying declarations it becomes the duty of the court to examine the same in the light of various surrounding facts and circumstances. In the said case the Court found several discrepancies even as regards the manner in which the kerosene was sprinkled and on facts did not find the dying declaration inspiring credence.

¶10In the case of Sharda (supra) the Court observed that a dying declaration to deserve acceptance should inspire full confidence of the court of its correctness and the court is required to see that such statement of the deceased is not a result of either tutoring, prompting or product of imagination. Emphasis was also laid on the satisfaction of the fact that the deceased was in a fit state of mind.

¶11In Shravan Ram and another (supra) the Court referred to the decisions in Kam/a v. State of Punjab5, Kishan Lal v. State of Rajasthan8, Lella Srinivasa Rao (supra), Amo/ Singh (supra) and State of A.P. v. P. Khaja Hussain 7, and, eventually, came to hold that there were discrepancies and contradictions between the two dying declarations and, therefore, the conviction could not be based on such dying declaration.

¶12In Laxmi (Smt) v. Om Prakash and others8, the Court 5. (1993) 1 sec 1.

a. c2000) 1 sec 310.

¶7(2009) 15 sec 120.

¶8c2001) a sec 110.

after referring to the maxim "Nemo moriturus praesumitur mentire" which means, "No one at the point of the death is presumed to lie'', opined that: -

"If in a given case a particular dying declarationsuffers from any infirmities, either of its own or asdisclosed by other evidence adduced in the caseor circumstances coming to its notice, the courtmay as a rule of prudence look for corroboralionand if the infirmities be such as render the dyingdeclaration so infirm as to prick the conscience ofthe court, the same may be refused to be accepted as forming a safe basis for conviction."

13: At this juncture, we may also fruitfully refer to a two-Judge Bench decision in Kundula Bala Subrahmanyam and another v. State of Andhra Pradesh9where the Court observed fu~

"A dying declaration made by person on the vergeof his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of thetruth of the statement made by the deceased regarding the causes or circumstances leading tohiE; death. A dying declaration, therefore, enjoysalmost a sacrosanct status, as a piece of evidence,coming as it does from the mouth of the deceasedvictim. Once the statement of the dying personand the evidence of the witnesses testifying to thesame passes the test of careful scrutiny of the courts, it becomes a very important and a reliablepiece of evidence and if the court is satisfied thatthe dying declaration is true and free from anyembellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. If there are more than one dying declarations then the courthas also to scrutinise all the dying declarations tofind 9. (1993) 2 sec 684.

out if each one of these passes the test ofbeing trustworthy. The Court must further find outwhether the different dying declarations are consistent with each other in material particularsbefore accepting and relying upon the same." s 14. Keeping mind the aforesaid principles, we shall

scrutinize whether the dying declarations withstand the attack made by the learned counsel for the appellant or they survive the assault to stand erect on the pedestal of credibility. To appreciate the controversy, .as raised, we required the learned counsel for the State to read out the statements in original to us. That apart, the learned counsel for the State has translated the same for better appreciation. On a keen scrutiny of the same we find that Dr. Sandip had only made an endorsement at the time of admission. Dr. Kunjan Patel also had made an endorsement and at that time he had recorded the three names and thereafter the Executive Magistrate had recorded the dying declaration. Emphasis of Dr. Bharadwaj, learned counsel is that j the deceased should have mentioned all the names to Dr. Sandip. As is perceivable, Dr. Sandip has not recorded the dying declaration. He, at the time of entry to the hospital, only mentioned the same as a requisite endorsement. In any case, we do not see any inconsistency in all the recordings, namely, by Dr. Sandip, Ext. 20, Dr. Kunjan Patel, Ext. 13, and Mr. Vinodbhai Mafatbhai Patel, Executive Magistrate, Ext. 16.

¶15We are disposed to hold so, as from the endorsement it is manifest that the deceased had, while availing treatment, said that the accused persons were totally hostile to her and in order to extinguish her life spark had poured kerosene on her. It is also reflectible from the hospital records tendered in evidence that the patient was conscious and well oriented and was in a position to follow the instructions. While the patient was in that condition, the Magistrate was called to record the dying declaration. About the fitness of the patient Dr. Kunjan Patel had examined the patient and clearly stated that she was in a fit and conscious condition to give a dying declaration. The Executive Magistrate had taken precautions by removing all the relatives of the injured from the room and approached the doctor to verify about the fitness of the patient, and after being satisfied that she was fit enough to give dying declaration, recorded the same in a questionnaire form. The deceased during recording of the statement has categorically stated that she had a quarrel on the date of occurrence with Balu Hema, Shailesh Balu and China Balu and, therefore, Balu Hema poured kerosene on her and China Balu caught hold of her and Shailesh Balu burnt her by igniting a match stick. It is submitted by Mr. Bhardwaj that the deceased should have mentioned all the names before the doctor at the first instance. The said submission suffers from fundamental fallacy inasmuch as Dr. Sandip was only making an endorsement at the time of entry into the hospital. He was not recording any dying declaration. It was only an endorsement which was required for the hospital record. As is evident, she has mentioned the names before Dr. Kunjan Patel who really treated her. Nothing has been brought on the evidence to discredit t~e testimony of the Executive Magistrate who has recorded the dying declaration in questionnaire form. There is no circumstance from which it can remotely be inferred that she was tutored or her statement was embellish.ed by any kind of influence. On the contrary, her testimony has been consistent and, therefore, the reliance placed on the same by the learned trial Judge as well as by the High Court is absolutely impeccable and, therefore, we do not find flaw in the judgment of conviction and order of sentence.

¶16Consequently, the appeal, being devoid of merit. stands dismissed. ·