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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.