CR.A/328/1990 of REHMANBHAI HUSSEINBHAI Vs STATE OF GUJ on 6 November 1995

1. Whether Reporters of Local Papers may be allowed to see the Judgment ?

2. To be referred to the Reporter or not ?

3. Whether Their Lordships wish to see the fair copy of Judgment ?

4. Whether this case involves substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?

5. Whether it is to be circulated to the Civil Judge?

Shri M.J. Budhbhatti, Advocate for the appellant.

Shri S.R. Divetia, Additional Public Prosecutor for therespondent State.

Coram: A.N. Divecha,J. & H.R. Shelat,J.

(9-11-1995)

ORAL JUDGMENT: (Per: H.R. Shelat, J.)

1. The appellant, being aggrieved by the judgment and order dated 31-1-1990 convicting him of the offences under Section 302and Section 436 of the Indian Penal Code; and sentencing him tolife imprisonment together with fine of Rs.500/- in default,simple imprisonment of 6 months with regard to the offence underSection 302 of the Indian Penal Code; and 10 years simpleimprisonment with fine of Rs.500/- in default, simpleimprisonment of 6 months more of the offence under Section 436,Indian Penal Code by the then learned Additional Sessions Judge,Mehsana, has preferred this appeal.

2. Husenbhai Amubhai was residing at Agol in Kadi Taluka ofMehsana District. Rahemanbhai Husenbhai and NoormohammedHusenbhai are his sons. He was having agricultural land. He andhis sons were residing together, but for the agriculturaloperations in the field he used to stay overnight in the shantyerected there. On 12th August 1988 Husenbhai Amubhai had gone gohis field and was required to stay overnight there because of theagricultural operations. After the day's work was over he tooksupper and went to bed. At 4.00 a.m. he was fast asleep, butsuddenly painful torridity made him to wake up. He was aghastedto note that the shanty was on fire which was a catastrophe. Hewas perdued owing to besetting violent flames about to incineratethe shanty. He sustained burns/injuries. He shouted for help.Few of the neighbouring land owners rushed to the scene andHusenbhai who was seriously injured was taken to BhagyodayaHospital for treatment. He before the Doctor and the policeofficer stated who caused the shanty to burn. He named hisson-the appellant, and then died during the course of thetreatment. A complaint was lodged. After the investigation wasover, the charge-sheet against the appellant was presented beforethe Court of the Judicial Magistrate, First Class at Kadi. Thelearned Magistrate committed the case for trial to the SessionsCourt at Mehsana which came to be numbered as Sessions Case No.54/89. The case was then assigned to the then learned AdditionalSessions Judge who recorded the plea and as the appellant pleadednot guilty, the prosecution adduced necessary evidence.Considering the materials on record, the learned AdditionalSessions Judge passed the order and convicted the appellant asstated hereinabove. Being aggrieved by the judgment and orderpassed by the lower Court, the present appeal has been preferredbefore us.

3. Mr.M.J. Budhbhatti, learned Advocate appearing on behalfof the appellant submitted that without any evidence appellantwas convicted. Required evidence as per law was wanting. Thelearned Judge misconstrued the evidence, and committed the errorwhile reaching to the conclusion . The lower court out of fancy,convicted the appellant. The learned Judge mainly relied uponthe statement made by the deceased before the Doctor butcredibility of the same was doubtful. Mr. Divetia, the learnedAdditional Public Prosecutor urged to chastise as it was the caseof patricide and the statement made by deceased was rightlyrelied upon.

4. We find force in the submission made on behalf of theappellant. Here, in this case two statements are made, onebefore the police officer and the another before the Doctor. Wewill first deal with the statement made before the police. Thatstatement is produced at Exh.31. It may be stated at this stagethat dying declaration even if uncorroborated can be made the base of the conviction; but before that is done, the conscienceof the Court should be satisfied. The Court must appreciate thestatements and evidence thereof with caution and strictness. Ifaccordingly it is appreciated and the statement is found beyonddoubt, true and having been made with free will, without anyinstigation, or bias or animosity and also found to have beenmade in the fit state of mind leaving no room to doubt, certainlyCourt can act upon it and convict the accused. In this case,therefore, we have to see whether the statement recorded by thepolice at Exh.31 satisfies the requirement of the law and ourconscience. Any one would be shocked knowing about patricide,butwithout being influenced by any notion. We have to appreciateand conclude as per law.

5. No doubt, the Head Constable recording the statement ofthe deceased is examined at Exh.30 and has supported thestatement made by the deceased, but on perusal, we find nojustification to place any reliance. According to the HeadConstable, at the bottom, the thumb impression of the deceasedwas taken but the possibility thereof is highly doubtful. Dr.Chaturbhai Savabhai Parmar, P.W.2 examined at Exh.16 has made itclear that both the hands of the deceased were affected by burnsand that fact is also mentioned in the certificate Exh.20. Whichportion of the hand was burnt is not elucidated by theprosecution, and therefore it must be assumed that the whole ofthe hands including the fingers were burnt. When that is thecase, it is difficult to agree with the submission made on behalfof the State that the accused put up the thumb impression. Whenhis thumb and fingers were also burnt it was not possible for himto put up his thumb impression. The statement with thumbimpression therefore raises the doubt, benefit of which must goto the appellant. Further mouth oesophagus and pharynx of thedeceased must have been choked up disturbing vocal cards,impairing the capacity to utter.

6. At 13.00 hours, the statement is alleged to have beenrecorded but the evidence of the Doctor discredits the truth ofthat statement. According to him at 11.30 Dexona injection wasgiven which is ordinarily given for regaining consciousness. Itwould, therefore, be clear that upto 11.30 the deceased was notconscious. Thereafter, again at 10.30 p.m., Dexona andAdrenaline injections were administered for the purpose ofregaining the consciousness. This would show that upto 10.30p.m. the deceased was not conscious; and it is also not madeclear by the prosecution whether or not even for few minutes thedeceased remained in consciousness in between. In the absence ofthat evidence, it should be assumed that even upto 10.30 p.m.the deceased was not conscious and therefore it is difficult toagree with the prosecution that the deceased was conscious andable to make statement and did make the statement in the fitstatement of mind. The materials on record on the contrary show that the deceased was not in a position to make any statement.However, when the statement is brought on record volumes can besaid against the truth of the prosecution case.

7. It is pertinent to note that, in order to establish fitstate of mind the person recording the dying declaration mustfirst consult the Doctor and have his opinion along withendorsement or certificate about fit state of mind which the HeadConstable Hirsinh has for no just cause omitted to do. Noreliance therefore can be placed on the alleged statement(Ex.31).

8. We now switch over to the statement alleged to have beenmade by the deceased before the Doctor orally. The same has beennoted down on the case paper by the Doctor (Exh.19.) The Doctorhas noted down that homicidal burns by his son Rahemanbhai whilehe was sleeping at his farm house and his son set fire to thefarm house. In the Certificate, Exh.20, the Doctor has alsomentioned that the burns were homicidal by his son Raheman (theappellant). Whether this statement of the deceased can be actedupon for determining the issue in question is the point posedbefore us and on that point both the learned Advocatesrepresenting the parties vehemently submitted, but we are notinclined to accept the submission of Mr.Divetia, the learnedAdditional Public Prosecutor representing the respondent. Forthe reasons stated hereinabove, we find that the deceased was notat all conscious for the purpose of making any statement. If atall at the initial stage when the deceased was admitted in thehospital made the alleged statement and the Doctor as appearsfrom the evidence informed the police, certainly he would havealso informed about the statement made, but nothing has beenbrought on the record from the record of the police station insupport of the say of the Doctor. The Doctor has no doubt statedthat the Bavlu police station recorded the statement of thedeceased at 1.00 p.m., and therefore Mr. Divetia representingthe respondent submitted that the deceased was conscious and wasin a position to make the statement but the statement, on whichMr. Divetia relies upon, is highly doubtful for the reasons wejust now stated hereinabove. The facts on record show that atthat time also and upto 10.30 p.m., the deceased was notconscious. The notes made by nurse are produced at Exh.21.These notes show that at 11-00 a.m; 4-00 p.m; 8-00 p.m; and 10-00p.m.,the deceased was conscious but the notes are not free fromsuspicion. The evidence of the Doctor (Exh.18) is shaky and doesnot inspire confidence. On perusal it is clear that the deceasedwas left to his fate assigning the task to the nurse. Whetherthe decision taken and drugs administered by the and nurse wasright and imperative is a mystery, as the Doctor could not facegrilling cross and hod to shrewdly indicate his inertia. It maybe mentioned that, the Doctor has stated in his cross-examinationthat Compose and Fortvin were administered by the Nurse making it

clear that he was not knowing why the same were administered andwhen making it clear that immediately after both the injectionsare given the patient will soon become unconscious. Since he wasin charge and giving treatment, he was supposed to know themedicines given and note improvement if any in the condition ofthe patient. It was his duty to continuously watch the conditionof the patient and if necessary make the changes in the medicinesand injections to be given, but he paid no attention and leftevery thing to the Nurse incompetent to take decision. He didnot watch nurse's performance, verify record and sign which wouldgo to show that he was not at all really attending andmechanically signed the papers, and later on went to the Court todepose so that the prosecution might get support. In thealternative, it is not made clear whether the deceased was in aposition to speak or utter although conscious. Under thecircumstances, both the statements, on which the prosecutionplaces reliance, are highly doubtful and not credible. Thelearned Judge, in our opinion, therefore fell into error inplacing the reliance thereon. When both the statements allegedto have been made by the deceased are kept aside, there is noevidence on record which would lead us to hold in favour of theprosecution. The prosecution, in view of the matter has, in ourview, failed to establish the charge beyond reasonable doubt. Onno other point submissions were made by either of the parties.The appeal, therefore, requires to be allowed and it isaccordingly allowed. The Judgment and Order, convicting andsentencing the appellant for the offences under Section 302 and436 of the Indian Penal Code, are hereby set aside. Theappellant-accused be set at liberty if not required in any othermatter. Fine if paid be refunded.

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