Hasmukhbhai Khristi & Anr Vs. Dahyabhai Ashabhai Khristi Parmar & Ors
 Insc 347 (14
Lahoti & Brijesh Kumar. Brijesh Kumar, J.
Appeal (crl.) 246 of 2001 Appeal (crl.) 247 of 2001
the three criminal appeals, noted above, arise out of the judgment and order
dated 21.9.2000, passed by the Gujarat High Court upholding the conviction and
sentence of all the appellants in the three appeals as awarded by the
Additional Sessions Judge, Kheda at Nadiad by the order dated 08.6.1998 in
Sessions Case No.195/1993. The appellants have been convicted under Section 302
read with Section 120-B IPC and sentenced to imprisonment for life. They have
also been sentenced to pay a fine of Rs.5000/- each, in default to suffer simple
imprisonment for a period of three years, except accused no.5 Ramilaben and
accused no.11 Elisaben, who have been sentenced to pay a fine of Rs.2000/-
each, in default thereof to suffer simple imprisonment for a period of two
years. Four persons, namely, Pushpaben Dahyabhai, Ravinaben Dahyabhai, Gersombhai
Yakubhai and Mariyamben Ashabhai, had been acquitted as no case was found to
have been made out for their conviction.
all, there were eleven accused persons, out of which accused no.6 Rameshbhai Ashabhai
died during the trial, six of them have been convicted and four have been
acquitted as indicated earlier. For the sake of convenience, it may be better
to note the "accused number" of all eleven persons, since they have
been so referred at many places in the judgments of the Sessions Court and the
of the Persons CONVICTED:
No.1 Dahyabhai Ashokbhai.
No.4 Hasmukhbhai Ashabhai.
No.5 Ramilaben Hasmukhbhai
No.8 Sulemanbhai Yakumbhai.
No.10 Daudbhai Shivabhai.
No.11 Elisaben Yusufbhai.
No.6 Rameshbhai Ashabhai (died during trial)
of the Persons ACQUITTED:
No.2 Pushpaben Dahyabhai.
No.3 Ravinaben Dahyabhai.
No.7 Gersombhai Yakubhai.
No.9 Mariyamben Ashabhai.
prosecution story is that on 15.02.1992 at about 9.30 a.m., the deceased Pragnesh Kumar aged about 24 years, was going
towards market in town of Matar,
District Kheda. While he was passing through the road, Accused No.2-Pushpaben Ashabhai
Khristi along with other ten accused persons surrounded him and she is said to
have sprinkled kerosene oil on Pragnesh Kumar and one of the remaining ten
persons lighted a match stick, as a result of which Pragnesh Kumar caught fire.
He received severe burn injuries to the extent of 90% all over the body. The
same day Pragnesh Kumar died of the said injuries in Vedilal Sarabhai Hospital, Ahmedabad sometime around 4.00 p.m.
town is situated about 15 to 18 Kms. from the District Headquarters Kheda and
40 Kms. away from Ahmedabad. CW-1 Ramilaben, sister-in-law of the deceased, on
coming to know about the incident, rushed to the place of the occurrence
opposite to the house of one Chandrakantbhai.
Mohanbhai Mecwan, the brother of the deceased Pragnesh Kumar and Hasmukhbhai Khristi,
husband of Ramilaben, were immediately called. PW-4 Jaykarbhai Mohanbhai Mecwan
along with one of his relative Lataben took Pragnesh Kumar to the Police
Station Matar, where CW-3 I.M. Kumpawat, P.S.I., who was present, advised them
to take Pragnesh Kumar to the hospital at Kheda and told that he would record
the complaint later on. According to PW-4 Jaykarbhai Mohanbhai Mecwan, his
brother, Pragnesh Kumar while on way to Kheda Hospital informed him that while he was passing
through the way Pushpaben held him and her relatives surrounded him. Pushpaben
sprinkled kerosene oil on his body and somebody from the crowd lighted the
reached kheda Hospital at about 10.00 a.m., where PW-2 Dr. Sanjay Vasantrao Kolte
gave treatment to Pragnesh Kumar and on enquiry made, he is said to have
informed the doctor that Dahyabhai Ashabhai Khristi, Hasmukhbhai, Rameshbhai, Ramilaben
wife of Hasmukhbhai, Pushpaben daughter of Dahyabhai Ashabhai Khristi, Elisaben
and Sulemanbhai Daudbhai, (in all named seven persons only) all surrounded him,
sprinkled kerosene and somebody from the crowd of the accused persons, put him
on flame. Dr. Kolte recorded a history of Medico Legal Case, Exh.46 and sent
telephonic information to Kheda town Police Station. Bhimsinh Chaturbhai, Head
Constable, noted information in the Telephone Register and the Station Diary
and sent Yadi to P.S.I PW-1 Vinodbhai Ramjibhai Toliya of Kheda Police Station.
A Yadi had also sent to hospital for recording dying declaration of Pragnesh
Kumar. PW-1 Vinodbhai Ramjibhai Toliya, P.S.I. reached the Kheda Hospital and recorded the statement of Pragnesh Kumar, Exh.29. He
took thumb impression of Pragnesh Kumar, since he was unable to put signature
due to his injuries. Doctor also made an endorsement to the effect that the
patient was conscious.
pursuance of the Yadi sent to the Magistrate from Kheda Police Station, PW-3 Ashwinbhai
Vasudev Dave, Executive Magistrate, Kheda reached to Kheda Civil Hospital at 11.05 a.m. and recorded the statement of Pragnesh Kumar.
Magistrate recorded the statement at 11.10 a.m. in question and answer form. The statement was completed at 11.46 a.m., it is Exh.60. Dr. Kolte advised shifting of the
patient from Kheda Hospital to Vedilal Sarabhai Hospital or L.G. Hospital, Ahmedabad for better and proper
treatment of the patient.
Kumar was, therefore, taken to Ahmedabad at Vedilal Sarabhai Hospital and admitted there at about 1300 hours on the same day i.e.
15.02.1992. An information was sent from the hospital to the Ellisbridge Police
Station for recording of the dying declaration of Pragnesh Kumar. Consequently,
PW-7 Suryakantbhai Shivrambhai, Executive Magistrate, Ahmedabad, recorded the
statement of Pragnesh Kumar at about 3.10 p.m. Initially, Pragnesh Kumar was
conscious and told his name, address, etc. and also narrated that Pushpaben Dahyabhai
poured kerosene on him, thereafter he could not speak any further. The half
recorded dying declaration is Exh.75. Pragnesh Kumar died at the hospital,
motive behind the incident is said to be that Pragnesh Kumar and Pushpaben, who
both resided in Khristi Palia in Matar town, had been deeply attached to each
intensity of their liking for each other was to the extent that sometime in
January 1992 Pushaben climbed up to the house of Pragnesh Kumar in the night
and reached to his residence, but father of Pragnesh Kumar and other elders
persuaded Pushpaben to return to her parents but Pushpaben ran away in the
darkness of the night, she was followed by Pragnesh Kumar. Both of them eloped
in this manner and stayed away together for sometime. Father of Pushpaben
lodged a complaint against Pragnesh Kumar and his father under Sections 363 and
366 of the IPC. Pushpaben and Pragnesh Kumar were apprehended by the Police and
in the course of the investigation Pushpaben was handed back to her parents.
Kumar was also granted bail. After the said incident, the occurrence in
question occurred on February 15, 1992.
receiving the information from Civil Hospital, Kheda, Head Constable Dalpatsinh
was sent at 10.30 a.m. on 15.02.1992 to the Kheda hospital for taking necessary
steps in the matter. CW-3 Kumpawat, P.S.I. of Matar Police Station, after
receiving information reached police station at 10.40 a.m.
went to the place of incident, where Ramilaben, who was later on examined as
CW-1, was present in the house of Pragnesh Kumar. She identified the place of
incident in the backyard of the house of Pragnesh Kumar. P.S.I. Kumpawat
prepared a panchnama of the scene of incident Exh.35 with two panchas. The panchnama
indicated that the place of incident as was shown by Ramilaben Jaykarbhai.
There was a smell of kerosene and two buckets full of water, smelling kerosene
oil, were also found kept there. The place where it is indicated that Pragnesh
Kumar poured kerosene oil on himself and committed suicide was also shown. He
interrogated some other witnesses and at about 12 O'clock he made an entry of accidental death in the Matar Police
Station Diary and concluded that no offence was to be registered against any
accused. He prepared a report of accidental i.e. suicidal death and placed it
before his superiors. The father of Pragnesh Kumar, Mohanbhai Kalibhai Mecwan,
was not satisfied with the investigation of the case and attempted to vent his
grievances before the higher authorities to get justice by conducting a proper
investigation into the case, since, according to him, it was not an accidental
death but death by commission of an offence. The Divisional Police
Superintendent some Mr. Naik ordered one Fatesinh S. Kant, Circle Police
Inspector to contact Mohanbhai Kalidas Mecwan and to hear his grievance.
Ultimately, on April
27, 1992, First
Information Report was recorded by Circle Inspector at Police Station Matar. Shri
Fatesinh S. Kant, thereafter, investigated the case and examined the witnesses
and obtained a copy of the dying declaration of the deceased and submitted a
charge-sheet under Section 302/120-B IPC against eleven persons.
prosecution examined in all eleven witnesses. PW- 1 Vinodbhai Ramjibhai Toliya,
is P.S.I. Police Station Kheda, who had recorded the statement of Pragnesh
Kumar at the hospital Exh.27. PW-2 Dr. Sanjay Vasantrao Kolte, who examined and
gave treatment to Pragnesh Kumar at Civil Hospital, Kheda and sent message to the
police station and received the statement of Pragnesh Kumar Exh.43. PW-3 Ashwinbhai
Vasudev Dave, is Executive Magaistrate, who recorded the statement of Pragnesh
Kumar at Kheda Hospital.
Mohanbhai Mecwan, is the brother of the deceased Pragnesh Kumar, who took him
to the Civil Hospital, Kheda. PW-5 Mohanbhai Kalidas Mecwan, is the father of the
deceased Pragnesh Kumar. PW-6 Dr. Ravindra S. Bhise conducted the post-mortem
examination of dead body of Pragnesh Kumar. PW-7 Suryankabhai Shivarambhai
Patel, Executive Magistrate, recorded statement of Pragnesh Kumar at the Vedilal Hospital in Ahmedabad Exh.75. PW-8 Jakibhai Kalidasbhai Mecwan and
PW-9 Bhimsinbhai Chaturbhai, Head Constable, Police Station, Kheda, who
recorded the message received from Dr. Kolte, telephonically. PW-10 Kailashben Ambala
and PW-11 is Fatesinh S. Khant, Circle Police Inspector, who filed the chargesheet.
Court had examined CW-1 Ramilaben Jaykarbhai, CW-2 Lataben Jakhibhai and CW-3
accused persons took the defence of denial and Suleman Daudbhai Khirsti and Dahyabhai
Ashabhai Khirsti pleaded alibi that they were on their duty on the fateful day
and examined defence witnesses DW-1 Balkrishna Bhailalbhai Khadiya and DW-2 Chanubhai
Dhulabhai Prajapati to prove alibi of Suleman Daudbhai. DW-3 Nainaben Rathilal Bhrambhatt
and DW-4 Bhagawanbhai Kanjibhai Makwana, were examined for Dahyabhai Ashabhai Khristi.
to be noted that there is no eye-witness to the incident, as a matter of fact,
case rests on the dying declarations recorded at different stages by the P.S.I.
Toliya, Dr. Kolte and two Executive Magistrates.
have heard Shri Ranjit Kumar, learned senior counsel appearing for Accused No.5
Ramilaben, wife of Accused No.4 Hasmukhbhai Ashabhai and Accused No.11 Elisaben
Yusufbhai For the remaining appellants we have heard Shri Dave who has adopted
the arguments made by Shri Ranjit Kumar, on the points common to all appellants
behalf of the appellants it has been submitted that the prosecution story
sounds improbable in as much as it would be highly doubtful if Pushpaben who
has been assigned the role of sprinkling the kerosene oil upon the deceased
would do so looking to their relationship and deep love and affection between
them. It is further submitted that improbability of the prosecution case is
reaffirmed by acquittal of Pushpaben. Shri Ranjit Kumar submits that it is a
case of suicidal death.
Kumar having frustrated by the fact that marriage of Pushpaben had been settled
by her parents somewhere else he took the extreme step of committing suicide.
It is further submitted that there is material on record to show that Pragnesh
Kumar had suicidal tendency as on one or two occasions earlier also he had
attempted to commit suicide.
occurrence, according to the learned counsel did not take place on the street
as alleged by the prosecution and that is the reason why there is no eyewitness
to the occurrence. Rather, the incident took place in the house of Pragnesh
Kumar. It is vehemently urged by the learned counsel for the appellants that in
any case the only evidence against the appellants consisting of four dying
declarations is not such that a conviction may be maintained solely on those
dying declarations which do not conform to the standards of acceptable dying
support of his contention that it was a case of suicidal death, he has referred
to Exh. 28 which is a telephonic message recorded at Police Station Kheda Town
received from Dr. Kolte of Civil Hospital, Kheda informing that Pragnesh Kumar
had sustained burn injuries while warming around the fire, he was admitted in
the hospital and that he was conscious and in good condition. Needful was
required to be done. Our attention has also been drawn to Entries No.8 and 9 of
Exh.31 the Station Diary of Police Station Kheda, in support of telephonic
message received from Dr. Kolte and its contents regarding warming up around
the fire. On receiving the message, Matar Police Station was also informed.
Entry No.9 shows that at 10.20 P.S.I. and Constable Majidkhan left for the
message sent to the Executive Magistrate for recording Dying Declaration from
PSO of the police station Kheda town is Exh. 32 which also contains the same
information given by Dr. Kolte including the part that Pragnesh Kumar had
received burn injuries while warming around the fire. The message was received
by the Magistrate at 10.35
a.m. The Panchnama Exh.
35 is said to be prepared by Shri Kumpavat PSI Matar Police Station who went to
the spot on receiving information on 15.02.1992 and found Ramilaben, wife of Jaykarbhai
Mohanbhai present, who showed him the place of occurrence.
House No.1763 belonging to Mohanbhai Kalidas Mecwan i.e. house of Pragnesh
Kumar. In the open space of the said house he found two buckets of water having
a smell of kerosene oil etc. on the spot. The place where Pragnesh Kumar is
said to have received burn injuries, according to the Panchnama was indicated
by Ramilaben who is the wife of the brother of the deceased. He also found
leaves of Mehndi plant burnt and plants was also having the smell of kerosene.
Again a reference has been made to Exh. 38, which is a message recorded by Dr. Ramesh
Macusana, CHO, V. S Hospital given by Constable Elisbridge, V.S. Hospital on
admission of Pragnesh Kumar in V.S. Hospital, Ahmedabad indicating therein
inter alia that Pragnesh Kumar had received burn injuries at home. Exh.39 to
which also our attention has been drawn is an extract from the diary of the
police station Matar dated 15.02.1992 wherein it is noted by I.M. Kampavat Sr.
P.S.I. Matar Police Station that at 12.15 p.m. that it is a case of accidental
death where the deceased had burnt himself by pouring kerosene oil at the
backside of his house. It was further noted that this fact has been disclosed
by the father of the deceased and therefore this accidental death case paper
may be kept with Station Diary. It may be noted that Ramilaben and I.M. Kumpawat,
P.S.I. of Matar Police Station were summoned by the Court and they have been
examined as Court witnesses. One Lataben, aunt of the deceased has also been
examined by the Court as Court witness. Whereas P.W. Kumpavat sticks to his
stand of having gone to the house of the deceased and having prepared the panchnama
and the site plan, at the instance of Ramilaben but she in turn namely, Ramilaben
denies to have shown any place of alleged incident to any police person nor the
police people had met her at her house. She also denies that any panchnama in
that regard was prepared by the police. On the other hand, she stated that she
was at her house when the incident occurred.
she heard cries of some woman that Pragnesh Kumar is burnt, she went out and
found that Pragnesh Kumar was lying burning in front of the house of Chandrakantbhai.
In cross- examination she told that she had seen Pragnesh Kumar burning, from
the house of Pushpaben where Pushpa and her mother were giving push to Pragnesh.
A different picture emerges from this statement. C.W.2, Lataben also says that
she found Pragnesh lying on the ground in burning condition who told her that Pushpa
and her family members had put him on fire with the matchstick. She gives no
explanation as to why she had not stated so in her statement at the police
station however she stated in the cross-examination that Jaykar's wife had told
her that police had come in the noon
and had gone away after making some investigation.
all that has been indicated in the preceding paragraph, it is sought to be made
on behalf of the appellant that the incident occurred at the house of Pragnesh
Kumar while he was warming around the fire or he committed suicide pouring
kerosene oil upon himself. It may also be noted that Dr. Kolte had stated that
he did not give any such information that Pragnesh Kumar had received injuries
while warming himself around the fire. But the fact remains that such a mention
is made in the entries of the police papers of P.S. Kheda Town and the yadis. Be that as it may, suffice it to say at this
juncture that the veracity of the four dying declarations will have to be
examined in any case and in that light this aspect of the matter, as
highlighted on behalf of the appellants, may be considered if necessary.
now consider the dying declarations. It appears at the time, the injured was
taken to the Civil Hospital, Kheda. Dr. Kolte medically examined him on 15.02.1992 at 10 A.M. Before the medical examination, the doctor seems to
have made some enquiries and noted down as follows:
:- Pt. Brought by his relative Jaykar.
of Burn :- I was passing on a public road, at that time, persons living in the
lane, Dahyabhai, Ashabhai, Hasmkukhbhai Rameshbhai, Ramilaben Hasmukhbhai, Elisaben,
Pushpaben Dahyabhai, Daudbhai Shivabhai, Sulemanbhai Daudbhai rounded up me,
and sprinkled kerosene on my body and set ablaze me. Patient conscious. Police
station informed for D/D" It is Exhibited as Exhibit '47'.
other dying declaration is recorded by , PW-1 Ramjibhai Toliya, PSI Police
Station Kheda. On receipt of vardhi (message) at 10.20 A.M. from the PSO, he proceeded to Kheda Civil Hospital. He is said to have asked Dr. Kolte
as to whether the injured Pragnesh Kumar was conscious or not and the doctor
told that he was conscious whereupon Shri Toliya proceeded to record his
statement. It is a long statement given by the injured. He indicates his name,
age, occupation as well as the address. He then indicates that the injured has
two other brothers, Jaiker is eldest and Vasant is youngest. He also told that
he is unmarried. He thereafter tells about the affairs that he had with Pushpa,
daughter of Dahyabhai Ashabhai. He then narrates that uncle of Pushpa and her
father had quarrels with him on that account. Uncle of Pushpa Gersang had even
beaten him and he was on inimical terms with them. Thereafter he named Pushpaben
Ashabhai Dahyabhai, Hasmukhbhai Ashabhai, Rameshbhai Ashabhai, Ramilaben Hasmukhbhai,
Elisaben, Gersang Yakubbhai, Suleman Daudbhai, Daudbhai Shivabhai and Mariyambhai
Ashabhai who surrounded him at about 9 A.M. while he was on the street near his house. He then told that Pushpaben
sprinkled kerosene oil on him and someone out of those persons put him on fire
by a match stick.
told that he was conscious and had given that statement. In the last paragraph,
he said that the aforesaid persons had conspired to kill him as a result of
which kerosene oil was sprinkled and he was set ablaze. There was no other
cause except his affairs with Pushpa. In the next line, he stated that whatever
was stated by him was true and correct and he had put his thumb impression.
statement was recorded by PW1 Shri Toliya, PSI Kheda and there is an
endorsement of Dr. Kolte on it dated 15th February, 1992 at 10.50 a.m. that the statement was recorded in his presenceand he was
unable to sign as both palms have burnt. During the statement, Pragnesh Kumar
was conscious. The statement Exhibited as Ex.29.
third statement was recorded by the Executive Magistrate, PW-3, A.V. Dave. He
was then as Deputy Engineer cum Executive Magistrate at Kheda. He commenced the
recording of the statement at 11.10 A.M. It
is in question answer form. It is a very lengthy statement which runs into
about four and a half pages. The answer given in reply to the question as to
how he was brought to the hospital, is very lengthy, narrating the whole story
and it runs into more than a page. Similarly, the answer to the last question
also runs into more than a page. The whole story is given in detail. He also
indicates that Gersombhai Yakubbhai Khristi, the uncle of Pushpa had beaten him
three months ago and he was being harassed at the instance of the members of
the family of Pushpa. Amongst those who had surrounded at the time of the
incident, indicates the names of Dahyabhai Ashabhai, Pushpa, Hasmukhbhai, Rameshbhai
Ramilaben, Hasmukhbhai, Elisaben etc. It is then stated that upon the
instigation of her father, the kerosene oil was sprinkled by Pushpaben upon his
body. In answer to another question as to besides those persons named above, if
there was anyone else, he replied that Suleman Daud, Daud Shiva, Mariamben Ashabhai
and Gersom Yakubbhai were also there. He was also given a beating by the
are also such statements like 'I declare specifically in the state of
consciousness', "Hence, I hereby state you to make the lawful proceedings
and to inflict severe punishment upon all the aforesaid persons". He again
states "I declare all the details on true facts on the basis of
(unuttered) knowledge and in the state of full consciousness". Again, he
states at one place, "I understand that it is my duty to declare the true
details hence I have declared the same in detail. I hereby reiterated as all
those facts are true and I pray to inflict severe punishment upon all the
guilty persons". He again told that he had thoroughly gone through the
statement and understood the facts and he was quite satisfied with his
statement. He had to put his thumb impression as he was not in a position to
sign. The statement was completed at 11.46 as noted by the Executive
Magistrate. It is in Exhibit-60.
another statement which had been recorded by Shri Suryakantbhai Shivrambhai,
Executive Magistrate, Metropolitan Area Ahmedabad commenced its recording at
the V.S. Hospital, Ahmedabad at 15.10 p.m. It is in the question- answer form. In answer to one of the questions
as to who was in the house at the time of the incident, he replied that his
brother's wife (Bhabhi) was there. In answer to the question that who set him
on fire, he told Pushpaben daughter of Dahyabhai. Thereafter he could only
speak "I was going to the market and at that time, Pushpaben Dahyabhai
sprinkled kerosene upon me whereafter he could not speak. The statement was
closed at 15.30 p.m. The Magistrate in his
cross-examination had stated that the deceased was not replying. Therefore, he
was made to understand the questions and that he had to explain the questions
to the injured about 15 times.
would also be appropriate to consider the condition of the deceased Pragnesh
Kumar at the time when he was taken to Civil Hospital, Kheda. PW-2 Dr. Sanjay Vasantrao Kolte
noted down the injuries found on his person on 15.2.1992 at 10.00 a.m. In all he found eleven injuries on different parts
of the body of the Pragnesh Kumar. He noted that he had second degree burn in
general. Injuries were on the neck, chest, abdominal and parietal region, etc.
PW-2 Dr. Sanjay Vasantrao Kolte has stated that physical condition of Pragnesh
Kumar was not good, therefore, he was advised to be taken to V.S. Hospital or L.G. Hospital, Ahmedabad.
He further states that Pragnesh Kumar was conscious. Looking to the Exh.45
which records the treatment given to Pragnesh Kumar, he has stated that due to
injuries it was not possible to record his blood pressure and the pulse.
However, the pulse was feeble. The post-mortem examination was conducted by
PW-6 Dr. Ravindra Shri Krishna Bhise the same day namely on 15.2.1992 at 5.45 p.m. In his opinion the death occurred due to shock on
account of burn injuries, which were sufficient to cause death in natural
course. It may be noted that Pragnesh Kumar received injuries on 15.02.1992 at
about 9.00 a.m. and died on the same day namely
15.02.1992 at around 4.00
p.m. His physical and
mental condition can well be visualised from the above facts.
burn injuries his blood pressure could not be recorded.
was feeble and at about 3.10
p.m. while his
statement was being recorded by the Executive Magistrate at V.S. Hospital, Ahmedabad,
he could not speak and his statement remained incomplete.
four dying declarations, as indicated above, have been recorded between 10.00 a.m. to 3.00 p.m., a mention of which has already
been made in the earlier part of this judgment. A perusal of the statement
recorded by PW-2 Dr. Sanjay Vasantrao Kolte on 15.2.1992 at 10.00 a.m. shows that there is no mention that Pushpaben Ashabhai
had sprinkled the kerosene oil on Pragnesh Kumar which has been the case of
prosecution throughout nor that she had lighted the match stick. Nothing
specific has been indicated as to who sprinkled the kerosene oil and who and in
what manner set him ablaze.
statement recorded later by P.S.I., Kheda Shri Vinodbhai Ramjibhai Toliya, Pragnesh
Kumar seems to have given a lot of details including as to how many brothers he
has got and who is elder and the younger etc. He assigned to Pushpaben the role
of sprinkling the kerosene oil on him. It is further added that somebody from
among those persons who had surrounded him lighted the matchstick and put the
same on his clothes. We then find that the statement recorded by the Executive
Magistrate PW-3 Aswinbhai Vasudevbhai Dave runs into more than four pages
indicating all the details and in this statement, it is mentioned that Pushpaben,
on the instigation of her father, had poured kerosene oil on his body. Pouring
of kerosene oil and lighting of matchstick appears to be central theme of the
prosecution case. But it is not to be found in the statement said to be given
to Dr. Kolte. The last and incomplete statement was recorded at 3.10 P.M. and he died after sometime thereafter. In this it is
indicated that Pushpaben Dahyabhai has sprinkled kerosene oil on him.
the law regarding dying declaration is concerned, on behalf of the appellants,
learned counsel for the appellants placed reliance upon some cases. In [2001(5)
SCC 254] Uka always to be kept in mind that though a dying declaration is
entitled to great weight, yet it is worthwhile to note that as the maker of the
statement is not subjected to cross-examination, it is essential for the court
to insist that the dying declaration should be of such nature as to inspire
full confidence of the court in its correctness. The court is obliged to rule out
the possibility of the statement being the result of either tutoring, prompting
or vindictive or a product of imagination. Before relying upon a dying
declaration, the court should be satisfied that the deceased was in a fit state
of mind to make the statement." As reference has then be made to the
decision reported State of Andhra Pradesh.
In this case the deceased had received extensive burn injuries to the extent of
90%. The prosecution case solely rested on the dying declaration. It was
observed that it was necessary to ensure that the statement was genuine and it
was recorded when the injured was in a fit state of mind. The certificate,
which was appended by the doctor in the end of the dying declaration, was that
the injured was conscious at the time of recording of her statement, but there
was no certificate to the effect that she was "in a fit state of mind to
make the statement". It has been held that without medical certificate
about mental fitness of the maker of the dying declaration, it would be very
risky to accept the said manuscript. The subjective satisfaction of the
Magistrate, recording the dying declaration, to the following effect :
the basis of answers elicited from the declarant to the above questions I am
satisfied that she is in a fit disposing state of mind to make a
declaration." was not considered acceptable in absence of certificate by
the doctor about mental fitness to make statement who had only indicated that
the declarant was conscious while making the statement.
this Court deprecated the practice of the police officers recording the dying
declarations except where the condition of deceased was so precarious that no
other alternative was left.
dying declaration is supposed to be recorded by a Magistrate. It is further
observed that number of declarations nor the length of the statement is the
factor to be taken into account to rely upon them. The main test is the mental
and physical fitness and capability of the declarant to make the statement. In
all there were five dying declarations in the case including those recorded by
the Magistrate, but it only contained a statement of the declarant in the end
to the effect that he had given the statement in his full consciousness and
another case referred to is reported in [2002(1) SCC it is necessary to have
the certificate of the doctor regarding the fit state of mind of the deceased
to make the declaration. The Magistrate recording his own satisfaction about
the fit mental condition of the declarant was not acceptable particularly when
the doctor was available.
the law, dying declaration, can form sole basis of conviction, if it is free
from any kind of doubt and it has been recorded in the manner as provided under
the law. It may not be necessary to look for corroboration of the dying
envisaged, a dying declaration is generally to be recorded by an Executive
Magistrate with certificate of a medical doctor about the mental fitness of the
declarant to make the statement. It may be in the form of question and answer
and the answers be written in the words of the person making the declaration.
But Court cannot be too technical and in substance if feels convinced about the
trustworthiness of the statement which may inspire confidence such a dying
declaration can be acted upon, without any corroboration.
case in hand the injured Pragnesh Kumar was brought to civil hospital, Kheda on
15.2.1992 at about 10.00
a.m. Before recording
the injuries, PW-2 Dr. Kolte noted the history of the burn as indicated
earlier. It only says that injured was passing on a public road, when persons
living in the lane, who are named, rounded him and sprinkled kerosene on his
body and set him ablaze. Thereafter the last line of Exh. 47 reads as under:
conscious. Police station informed for D/D" The doctor thus had already
taken steps for recording of the dying declaration yet preferred to record the
statement without waiting for the police to arrive or the Magistrate to come
for recording the dying declaration. The certificate about the condition of the
patient only says that he was conscious. There is nothing about his mental
fitness. Thereafter the next dying declaration Exh.29 was recorded later by
PW-1 V.R. Toliya PSI Kheda Police Station. In his statement in the Court he has
deposed that while leaving for civil hospital, Kheda from the Police Station,
he had instructed PSO to request the Executive Magistrate Kheda to record dying
declaration of Pragnesh Kumar and he had handed over all papers to Head Constable
Ganpat Singh of Matar Police Station. Despite the instructions given for
getting the dying declaration recorded by the Magistrate, he proceeded to
record the dying declaration again without waiting for the Executive Magistrate
to come and record the same. The statement recorded by PW-1V.R. Toliya Exh.29
bears endorsement of Dr. Kolte to the effect "conscious during statement statement
is recorded before me , both palms burnt so unable to sign". This
Certificate is signed by Dr. Kolte on 15.2.92 at 10.50 a.m. There is however some over-writing over the figure `50'
while recording the time 10.50
a.m. It may however be
not very significant to go into further details in respect thereof. About the
contents of Exh.29, the dying declaration, it has already been indicated in the
earlier part of this judgment that there are some such detail which hardly seem
to be related to the incident. It makes repetitions also and also takes due
care to make it believable by stating that he was conscious while making the
statement and whatever has been stated "above" is true and correct
and further says that he puts his thumb impression. It is to be found in this
statement that the fact has been introduced that Pushpaben had sprinkled
kerosene oil on him and he was burnt with some matchstick. In the end the
statement sums up by stating "Thus the aforesaid persons with conspiracy
in relation to my love affairs with Pushpa rounded up me and sprinkling the
kerosene, have set me ablaze with an intent to kill me and there is no other
to observe again that this is the statement recorded by a Police Sub-Inspector
after having instructed to the PSO for getting the dying declaration recorded
by an Executive Magistrate. With passage of time since after the injuries were
received by Pragnesh Kumar, the statement becomes more lengthy and detailed.
There is no certificate of mental fitness by the doctor.
statement recorded by P.W.3 Executive Magistrate, A..V. Dave is Exh.58. He
received information to record the dying declaration on 15.2.92 at 10.35 a.m.
He reached the hospital and met the doctor at 11.05 a.m. He enquired from the
doctor whether the patient was conscious or not and on being told that he was
conscious he proceeded to record his statement.
the statement recorded in four and a half pages. It is for the first time
indicated that he was beaten by those who surrounded him but no injuries were
found either by Dr. Kolte or by the doctor performing the post-mortem
examination. Yet another deviation is that Pushpaben on instigation of her
father had poured kerosene oil on his body. Initially he had not named Suleman Daud,
Daud Shiva Mariamben Ashabhai and Gerson Yakubhai as accused in his statement.
Other noticeable things have already been indicated in the earlier part of this
statement was recorded for more than 35 minutes. No certificate of any doctor
about mental fitness of Pragnesh Kumar to make such a statement is appended in
the dying declaration. Time and again there is repetition on the part of the
injured indicating that he was conscious and he was declaring the truth. It is
highly doubtful that he could give such lengthy statements with the language
from the above noted three statements, there is one more statement recorded by
a Magistrate PW-7 Patel Suryakantbhai. He is an Executive Magistrate at Ahmedabad
who recorded the dying declaration at V.S. Hospital, Ahmedabad. But this
statement is incomplete as after answering a few questions, Pragnesh Kumar was
not able to speak. The time of recording of this statement is 3.30 p.m. The
Magistrate in his statement deposed that the injured was not replying the
question and he was made to understand the same.
to explain the questions frequently, sometimes for about 15 times. The mental
state of the injured can well be understood by the fact that he had to be
explained the question, as many as about 15 times before eliciting any reply.
The Magistrate himself noted that the dying declaration was written to the
extent the injured dictated and spoke in state of his consciousness. It also
does not bear any endorsement or certificate of the doctor about the mental
condition of the injured as to whether he was fit or not to make a statement.
statement also a scribes the role of sprinkling of kerosene oil upon his body
by Pushpaben. It is also noticeable that he tells that at the time of incident,
his Bhabi was at the house.
four dying declarations recorded by the doctor, the police inspector and the
two Magistrates have been discussed in some detail above. None of these dying
declarations contains any certificate by the doctor about the mental fitness of
Pragnesh Kumar to make a statement although doctor was always available. In two
dying declarations it is only indicated that he was conscious. No amount of
subsequent statement of the doctor can supplement the endorsement of
Certificate while recording the dying declaration. The first two statements
have been recorded in quick succession without waiting for the Magistrate to arrive
even though steps had been taken for recording of the dying declaration by the
Magistrate who actually got the message at about 10.30 a.m. and had contacted
the doctor at the hospital at 11.05 a.m. There are deviations from statement to
statement consistency is conspicuously missing The first dying declaration
recorded by Dr. Kolte does not say about Pushpaben sprinkling the kerosene oil.
Eight or nine persons living in the lane are said to have surrounded him but
who sprinkled oil and who lighted the matchstick is not stated. In view of the
decisions of this Court referred to above, it may not be possible to base the
conviction on the sole basis of dying declarations. There is no eyewitness to
the incident. In two dying declarations he had stated about being beaten by
accused persons but no such injuries are found in any report.
view of our conclusion regarding dying declarations, we do not think it would
at all be necessary for us to dwell into the controversy about the conduct of
the investigation by PW-3 Kumpawat according to whom he was informed that the
incident occurred at the house of Pragnesh Kumar. Ramilaben denies that she was
ever contacted by the police in connection with the investigation of the case
or to have shown the place of occurrence though in her statement in the Court
as a Court Witness she says that she had seen Pragnesh Kumar burning from the
Verandah of the house of Pushpaben and that Pushpaben and her mother were
pushing him out. In the last dying declaration Pragnesh Kumar said about
presence of his Bhabi at home. Nor do we find it necessary to go into the
question about the yadis and vardhis or telephonic message said to be given by
Dr. Kolte to the effect that Pragnesh Kumar received injuries while he was
warming himself around the fire.
also not necessary to refer to the reports and statements given by father of Pushpaben
to the authorities and the police where it was indicated that on some earlier
occasions also on account of his affairs with Pushpaben, he tried to commit
suicide. Such statements have been placed on record as Exh.67 and 69. It may
also be noticed that Pushpaben along with a few others have already been
acquitted and she had been assigned a specific role of sprinkling kerosene oil
on Pragnesh Kumar although it is not be found in the statement given to Dr. Kolte.
to all the facts and circumstances of the case as indicated above, we are of
the view that it is not a case in which conviction can be recorded only on the
basis of dying declarations which fail to inspire confidence. No other
corroboration is coming forth from any corner. Even the trial court had held
that it was satisfied that A-7 Gersombhai Yakubhai and A-9 Mariyamben Ashabhai
are falsely implicated in the case. It is also observed that the dying
declarations of Pragnesh Kumar are not acceptable regarding their involvement.
result the prosecution story as put forward does not inspire confidence on the
basis of the material placed on record.
the three appeals are therefore allowed and the conviction and sentence passed
against the appellants are set aside. They shall be set free forthwith unless
wanted in any other case.