Shaileshbhai Alias Pappu Balubhai Chunara And Another v. State Of Gujarat .

Dipak Misra, J.— In this appeal, by special leave, the assail is to the judgment of conviction and order of sentence dated 2-5-2012 passed by the High Court of Gujarat at Ahmedabad in Balubhai Hemabhai Chunara v. State of Gujarat 2012 SCC OnLine Guj 2960, 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 appellant-accused guilty of the offence punishable under Sections 302/34, 332 and 114 of the Penal Code, 1860 (for short “IPC”).

2. The 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 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 appellant-accused 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 alias 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 the 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.

3. After completing the investigation, the prosecution laid the charge-sheet under Sections 302/34, 323 and 114 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 Sections 302/34 IPC, apart from separate sentence imposed under Sections 323 and 114 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.

4. On 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.

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

6. There is no dispute that the conviction has been recorded on the sole basis of the dying declaration. As the material brought record would 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 after the investigating agency requisitioned the presence of the 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 the 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 appellant-accused and they had caused burn injuries on her legs, chest and other parts 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.

7. Mr Bhardwaj, learned counsel for the appellant attacking the acceptability of the dying declaration has urged that when there are more than one dying declarations, 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.P (2004) 9 SCC 713, Amol Singh v. State of M.P (2008) 5 SCC 468, Sharda v. State of Rajasthan (2010) 2 SCC 85 and State of Rajasthan v. Shravan Ram (2013) 12 SCC 255.

8. In Lella Srinivasa Rao (2004) 9 SCC 713 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 of the first dying declaration though the said dying declaration was recorded by a Magistrate after taking all precautions.

9. In Amol Singh (2008) 5 SCC 468 the Court noticed certain 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 scrutinising 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.

10. In Sharda (2010) 2 SCC 85 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.

11. In Shravan Ram (2013) 12 SCC 255 the Court referred to the decisions in Kamla v. State of Punjab (1993) 1 SCC 1, Kishan Lal v. State of Rajasthan (2000) 1 SCC 310, Lella Srinivasa Rao (2004) 9 SCC 713, Amol Singh (2008) 5 SCC 468 and State of A.P v. P. Khaja Hussain (2009) 15 SCC 120 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.

12. In Laxmi v. Om Prakash (2001) 6 SCC 118, the Court 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:

“1. … If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so infirm as to prick the conscience of the 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 v. State of A.P (1993) 2 SCC 684, (1993) 2 SCR 666 where the Court observed that:

“18. … A dying declaration made by person on the verge of 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 the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment 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 court has also to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same.”

14. Keeping in mind the aforesaid principles, we shall scrutinise 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.

15. 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:

15.1 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 Bhardwaj, learned counsel is that 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. We 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.

15.2 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.

15.3 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 matchstick. 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, the deceased has mentioned the names before Dr Kunjan Patel who really treated her.

15.4 Nothing has been brought on the evidence to discredit the 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 embellished 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.

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