KOLI CHUNILAL SAVJI AND ANR.versusSTATE OF GUJARAT

A                     KOLi CHUNILAL SAVJI AND ANR.
                                    v.
                            STATE OF GUJARAT                                          ..i


                              SEPTEMBER 29, 1999

B                 [G.B. PATTANAIK, M. SRINIVASAN AND
                          N. SANTOSH HEGDE, JJ.]

          . Penal Code, 1860 : Sections 302/34 and 498-A-Bride burning-Hus-
    band and mother-in-law burning the bride and child--Deceased making two
C   dying declarations, one to police and another to Magistrate-No endorsemellt
    of doctor on the dying declaration as to the menial condition of deceased-En-
    dorsemellt in police yadi-No inconsistency in two dying declaration~Trial
    Court not placing reliance 011 the dying declaratio11~Acquittal-On appeal,
    High Court holding the two dying declarations trnthful and voluntary--Co11-
D   victio11 and sentence-Validity of-Held, dying declaration does not lose its
    value merely in the absence of endorsement by doctor-Two dying declarations
    made by deceased are trnthful and voluntary-Prosecution case has been
    established beyond reasonable doubt-<::onvictio11 and sentence upheld-
    Evidence Act, 1872 : Section 32.

E        ·Evidence Act, 1872 : Section 32-Dying declaration-No endorsement
    by doctor indicating the melltal condition of deceased-Effect of

            Criminal Procedure Code, 1973: Sections 378 and 386-Appeal against
     acquittal-Power of High Court to interfere with-Held, power of High Court
     while sitting in appeal against an order of acquittal is the same as the power
F    in appeal against conviction-However, appellate Court to bear in mind the.
    ·reasons advanced by the Trial Court for acquitting the accused and indicate
     the reasons for non-accepting the same-Trial court e"o11eously excluded the
     dying .declaration which were found to be trnthful and voluntary-High Court
     justified in interfering with the order of acquittal.
G         The appellants were prosecuted for an offence under Section 302/34
    and 498-A IPC. Thi! prosecution case was that when 'D' and her son 'A' were
    sleeping the accused, viz. the husband and mother-in-law poured kerosene
    on them and set them o.n fire. They were taken to the hospital, where the
    Sub-Inspector (PW-14) recorded the statement of 'D' which was treated as
H   FIR (Exh.45). Besides this, Magistrate also recorded her statement in the
                                          284
                   KOU CHUNILAL SEVJI v. STATE                         285

hospital which was treated as a dying declaration (Exh.14) Both 'D' and 'A'   A
succumbed to their burn injuries. The Trial Court not relying upon the
dying declaration acquitted the accused person for offence under Section
302/34. However, the Trial Court convicted them for an offence under
Section 498·A IPC and sentenced them to two years rigorous imprisonment.
On appeal, High Court holding the two dying declarations truthful and
voluntary convicted the accused under Section 302/34 IPC. and awarded         B
sentence of imprisonment for fife. The High Court also affirmed the con·
viction and sentence of Trial Court under section 498-A IPC. Aggrieved, the
appellant-accused have preferred the present appeal.

      The contentions of the appellants were that (i) the two dying dee·      c
Iarations 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; (ii) the deceased was surrounded by her own relations before
the dying declaration was recorded by the Magistrate and as such had          D
sufficient opportunity to be tutored and consequently the dying declara·
tion recorded by the Magistrate becomes vitiated; (iii) 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            E
should not have been accepted; (iv) 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.

       The contentions of the respondent-State were that (i) the doctor did F
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; (ii) the power of the High Court against an order of
acquittal is the same as against an order of conviction and while setting G
aside an order of acquittal, it is necessary for the Appellate Court to look
to the reasoning given by the Trial Judge and be satisfied whether those
reasonings are just and proper; and (iii) the reasoning given by the
Sessions Judge to discard the two dying declarations having been found
by the High Court to be wholly unreasonable and, therefore, the High H
    286                   SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A Court was fully entitled to interfere with the conclusion of the Sessions
    Judge and no infirmity can be found out on that score.

          Dismissing the appeals, this Court

          HELD : 1.1. The two dying declarations made by the deceased are
B truthful and voluntary and can be relied upon by the prosecution in
    bringing home the charge against the accused persons. Thus, the prosecu-
    tion case has been established beyond reasonable doubt and High Court
    was justified in convicting the accused under section 302/34 and 498-A
    IPC. [293-A; 294-B]
c          1.2. The dying declaration does not lose its value merely because
    the doctor was absent while recording it and had made no endorsement
    indicating the mental condition of the deceased. It is no doubt true that
    before recording the declaration, the concerned officer must find that the
    declaration was in a fit condition to make the statement in question. But
D   the aforesaid requirements are merely rules of prudence and the ultimate
    test is whether the dying declaration was truthful one and voluntarily
    given. [291-F; 292-D]

          Ravi Chander and Ors. v. State of Punjab, [1998] 9 SCC 303 and
E Harjit Kaur v. State of Punjab, [1994] 4 SCALE 447, relied on.
          Maniram v. State of Madhya Pradesh, AIR (1994) SC 840, referred
    to.

         1.3. In the instant case, with regard to the condition of the deceased,
F the Magistrate who reccorded the dying declaration has been examined as
  withness. She has categorically stated in her evidence that as soon as she
  reached the hospital, she told the doctor on duty that she is required to take
  the statement of 'D' and she showed the doctor the police yadi. The doctor
  then introduced her to 'D' and when she asked the doctor about the condi-
G ti on of 'D', the said doctor categorically stated that she was in conscious
  condition. Thus, 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,
  there is no justification in the comments that the dying declaration should_
  not be relied upon in the absence of the endorsement of the doctor thereon.
H Moreover, the police also took the statement of the deceased which was
                         KOU CHUNILAL SEVJI v. STATE                          ']11,7

     treated as F.l.R., and the same can be treated as dying declaration. The two      A
     dying declarations made by the deceased at two different points of time to
     two different persons corroborate each other and there is no inconsistency
     in those two declarations made. [292-D·E·F-G-H; 293-A]

           2. It cannot be said that there has been an inordinate delay in
     recording the statement of the deceased. The incident took place at 4 A.M.        B
     and the Magistrate recorded the dying declaration at 9. A.M. [293-B·C]

           3. There is no iota of evidence that by the time the Magistrate went,
     the deceased was surrounded by many 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            c
     of the deceased, there is no material on record. Thus it cannot be said
     that the deceased was tutored by her relatives and consequently the dying
     declaration recorded by the Magistrate becomes vitiated. [293-D]

            4. The Trial Court erroneously excluded the two declarations from          D
     the purview of consideration and therefore, the High Court was fully jus-
     tified in interfering with the order of acquittal recorded by the trial Court
     and as such the conviction of the appellant under section 302/34 IPC is
     unassailable. 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,     E
     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 Trial Court,
     while acquitting the accused and indicate as to why those reasons cannot
     be accepted. This being the parameter for exercise of power while entertain·      F
     ing an appeal against the order of acquittal and in view of the conclusion
     the finding that the two dying declarations were truthful· ones and volun-
     tarily made, there is no infirmity in the impugned judgment of the High
     Court in setting aside the order of acquittal. [293-E-F •G·H; 294-A]

          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.                        G
     1786 of 1996.

          From the Judgment and Order dated 21/24.6.96 of the Gujarat High
     Court in Crl. A No. 236 of 1989.

           R.N. Keshwani and N.N. Keshwani for the Appellants.                         H


l
    288                  SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A         Ms. Hemantika Wahi and Ms. Anu Sawhney for the Respondent.

          The Judgment of the Court ws delivered by

          PATIANAIK, J. These two appeals arise out of Judgment dated
B 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
C 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
D 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 declara-
  tion made by the deceased Dhanuben and in the absence of any other
E evidence to connect the accused appellants with the murder of the
  deceased, acquitted them of the charge under Section 302/34 IPC. The
  learne.d 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
F 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 Judg-
  ment set aside the order of acquittal, relying upon the two dying declara-
G tions Exh. 45 and Exh. 41 and convicted the appellants of the charge under
  Section 302/34 IPC and State's 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
H the appeal of the accused persons against their conviction under Section
          KOL! CHUNILALSEVJI v. STATE [PATTANAIK,J.)                  289

498A, the High Court had suo motu issued notice as to why the sentence      A
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 B
bodies of Dhanuben and her son Ajay and the evidence of doctor PW 9,
who conducted the autopsy over the dead bodies, the conclusion is irresis-
tible 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 c
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 D
namely Exh.45, recorded by the Sub-Inspector PW14 and the dying decla-
ration Exh.41, recorded by the Magistrate PW12 and came to the. con-
clusion 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 E
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
                                                                             F
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 G
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 submis- H
                                                                                    '

    290                   SUPREME COURT REPORTS [1999) SUPP. 3 S.C.R.

A sion that the deceased was surrounded by her own relations before the
    dying declaration was recorded by the Magistrate and as such had suffi-
    cient opportunity to be tutored and consequently the dying declaration
    recorded by the Magistrate becomes vitiated. Mr. Keshwani also submitted
    that the in~ident 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
B   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
c   appellants under Section 302/34 IPC cannot be sustained.

         The learned counsel appearing for the respondent 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
D 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
E 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
F
  necessary for the Appellate Court to look at the reasoning given by the
  trial Judge and be satisfied whether those reasonings 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     ·~


G 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
                                                                                   t
H   scanty evidence, the Courts could not have convicted the accused persons
          KOLi CHUNILALSEVJI v. STATE [PATIANAIK,J.]                     291

of the· said charges, the learned counsel for the respondent submitted that     A
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.                                                    B

        (1) Whether the two dying declarations can be held to be true and
        voluntary and can be relied upon or can be excluded from con-
        sideration for the infirmities pointed out by Mr. Keshwani, appear-
        ing for the appellants.                                                 C
        (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 D
absence of doctor while recording the dying declaration, the said declara-
tion loses its value and cannot be accepted. Mr. Keshwa11i in this connec-
tion relies upon the decision of this Court in the case of M aniram v. 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 E
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 F
mere a rule of prudence and the ultimate test is whether the dying decla-
ration 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. v. State of Punjab, "(1998] 9 SCC 303, this Court
has held that for not examining the doctor, the dying declaration recorded G
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 H
    292                   SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R.

A fabricating the dying declaration and, therefore, the question of genuine-
    ness of the dying declaration recorded by the Executive Magistrate to be
    doubted does not arise. In the case of Ha1jit Kaur v. 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
B            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
c            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
   <:annot be relied upon as the doctor has not been examined and the doctor
D 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 thf' doctor the Police yadi. The
E 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 decla-
   ration recorded by the Magistrate with regard to the condition of the
F 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
G 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
H those two declarations made. In this view of the matter, we have no
               KOU CHUNILALSEVJlv. STATE [PATIANAIK,J.)                      293

      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 the prosecu-
     tion case must be held to have been established beyond reasonable doubt.
     Consequently, we have no hesitation in rejecti..1g 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
                                                                                    B
     on the part of the Magistrate to record the dying declaration and, there-
     fore, 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. Kesh-     c
     wani had also urged that when the Magistrate recorded the dying declara-
     tion, 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 D
     deceased was surrounded by any of her relations. No doubt the Magistrate
     he~self 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.
                                                                                   E
            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-ap-
     preciate the materials on record and in coming to its own conclusion. The F
     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, G
     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 fmd that the learned Sessions Judge erroneously ex-
     cluded the two dying declarations from purview of consideration and
     therefore, the High Court was justified in interfering with the order of H
   294                   SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A acquittal. If the order of acquittal is based upon the grounds not sus-
  tainable, 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
B 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,
C therefore, these appeals fail and are dismissed.
    S.V.K.                                                 Appeals dismissed.