STATE OF GUJARAT Vs. JAYRAJBHAI PUNJABHAI VARU - Murder
Section 34 - Acts done by several persons in futherance of common intention
Section 302 - Punishment for murder
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 1236 of 2010, Judgment Date: Jul 11, 2016
10) The courts below have to be extremely careful when they deal with a
dying declaration as the maker thereof is not available for the cross-
examination which poses a great difficulty to the accused person. A
mechanical approach in relying upon a dying declaration just because it is
there is extremely dangerous. The court has to examine a dying declaration
scrupulously with a microscopic eye to find out whether the dying
declaration is voluntary, truthful, made in a conscious state of mind and
without being influenced by the relatives present or by the investigating
agency who may be interested in the success of investigation or which may
be negligent while recording the dying declaration. In the case on hand,
there are two sets of evidence, one is the statement/declaration made
before the police officer and the Executive Magistrate and the other is the
oral dying declaration made by the deceased before her father who was
examined as PW-1. On a careful scrutiny of the materials on record, it
cannot be said that there were contradictions in the statements made before
the police officer and the Executive Magistrate as to the role of the
respondent herein in the commission of the offence and in such
circumstances, one set of evidence which is more consistent and reliable,
which in the present case being one in favour of the respondent herein,
requires to be accepted and conviction could not be placed on the sole
testimony of PW-1. A number of times the relatives influence the
investigating agency and bring about a dying declaration. The dying
declarations recorded by the investigating agencies have to be very
scrupulously examined and the court must remain alive to all the attendant
circumstances at the time when the dying declaration comes into being. In
case of more than one dying declaration, the intrinsic contradictions in
those dying declarations are extremely important. It cannot be that a dying
declaration which supports the prosecution alone can be accepted while the
other innocent dying declarations have to be rejected. Such a trend will be
extremely dangerous. However, the courts below are fully entitled to act on
the dying declarations and make them the basis of conviction, where the
dying declarations pass all the above tests.
11) The court has to weigh all the attendant circumstances and come to
the independent finding whether the dying declaration was properly recorded
and whether it was voluntary and truthful. Once the court is convinced that
the dying declaration is so recorded, it may be acted upon and can be made
a basis of conviction. The courts must bear in mind that each criminal
trial is an individual aspect. It may differ from the other trials in some
or the other respect and, therefore, a mechanical approach to the law of
dying declaration has to be shunned.
The conviction basing
reliance upon the oral dying declaration made to the father of the deceased
is not reliable and such a declaration can be a result of afterthought.
13) The burden of proof in criminal law is beyond all reasonable doubt.
The prosecution has to prove the guilt of the accused beyond all reasonable
doubt and it is also the rule of justice in criminal law that if two views
are possible on the evidence adduced in the case, one pointing to the guilt
of the accused and the other towards his innocence, the view which is
favourable to the accused should be adopted.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1236 OF 2010
State of Gujarat .... Appellant(s)
Versus
Jayrajbhai Punjabhai Varu .... Respondent(s)
J U D G M E N T
R.K. Agrawal, J.
1) This appeal has been filed against the judgment and order dated
16.07.2009 passed by the High Court of Gujarat at Ahmedabad in Criminal
Appeal No. 976 of 2003 whereby the High Court allowed the appeal filed by
the respondent herein against the judgment and order dated 30.06.2003
passed by the Court of Sessions Judge, Amreli in Sessions Case No. 20/2003.
2) Brief facts:
(a) Rekhaben (since deceased) was married to Jayrajbhai Punjabhai Varu-
the respondent herein and was residing at Gopalgram, Taluka Chalala,
Gujarat along with her in-laws, viz., Punjabhai Lakhabhai Varu-father-in-
law, Manuben Punjabhai-mother-in-law and Ramjuben Punjabhai-sister-in-law.
(b) On 10.03.2003, Rekhaben was admitted to the Government Hospital,
Amreli with 90 per cent burn injuries. A First Information Report (FIR)
being No. 7/03 got registered under Section 307 of the Indian Penal Code,
1860 (in short ‘the IPC’) wherein she stated that on 10.03.2003, at about 5
o’clock in the morning, when all other family members were sleeping in the
house, an unknown person came near her and told her that he had come to
take her. By saying so, he took her into the kitchen, poured kerosene on
her and by lighting the matchstick set her on fire and went away from the
place and, consequently, she started burning in flames. She further gave a
statement that the unknown person was an outsider who was wearing white
clothes. On hearing her cries, other family members also woke up and
admitted her in the hospital at Amreli. It may be mentioned here that the
above said FIR was registered on the basis of the statement given by the
deceased herself on 10.03.2003, at about 7:30 a.m., in the hospital to Shri
Bhikhu Karsanbhai, P.S.O., Amreli City which was treated as a complaint.
In the said statement, the thumb impression of Rekhaben was identified by
Vala Jaskubhai Suragbhai – the father of the deceased.
(c) On the very same day, at 8:25 a.m., she made a statement before the
Executive Magistrate, Amreli and narrated the whole incident. In the
afternoon, Rekhaben succumbed to her injuries. On the basis of the
statement given by the deceased, Jayrajbhai Punjabhai Varu-the respondent
herein, Punjabhai Lakhabhai Varu-father-in-law, Manuben Punjabhai-mother-in-
law and Ramjuben Punjabhai-sister-in-law were arrayed as accused and a
chargesheet was filed under Sections 302, 201 and 34 of the IPC and the
case was committed to the Court of Sessions and numbered as Sessions Case
No. 20/2003.
(d) The Sessions Judge, Amreli, vide order dated 30.06.2003, convicted
the husband of the deceased under Section 302 of the IPC and sentenced him
to suffer rigorous imprisonment for life while acquitting the other accused
persons.
(e) Being aggrieved, the respondent herein filed a Criminal Appeal No.
976 of 2003 before the High Court of Gujarat. The Division Bench of the
High Court, vide order dated 16.07.2009, allowed the appeal.
(f) Aggrieved by the order dated 16.07.2009 acquitting the husband of the
deceased of all the charges, the State has filed this appeal by way of
special leave before this Court.
3) Heard learned counsel for the parties and perused the record.
4) Learned counsel for the respondent-State submitted that the relations
between the deceased and the respondent herein were strained and the
deceased was compelled to withdraw from her matrimonial home several times.
The deposition of Jaskubhai Suragbhai (PW-1)-father of the deceased shows
that she was subjected to torture, both mental and physical, before she
succumbed to the injuries. It was contended that the deceased was
compelled to give false and wrong statement/declaration before the police
as well as before the Executive Magistrate by the accused. It was further
contended that the accused persons caused physical cruelty to the deceased
during the intervening night of the incident and poured kerosene upon her
and set her on fire. The statement given by P.W.1 is consistent and his
evidence is getting absolute corroboration with the circumstantial evidence
which is available on record. His evidence remained unimpeached during the
course of the trial and there is no reason for which his evidence can be
side lined. Learned counsel for the State vehemently contended that the
deceased Rekhaben died under mysterious circumstances in the house which
was occupied and possessed by the accused person for which the accused has
not offered reasonable explanation, therefore, the presumption as provided
under Section 114 of the Indian Evidence Act is required to be drawn and
such presumption has not been rebutted by offering reasonable explanation.
5) Learned counsel for the respondent contended that the prosecution has
relied upon the testimony of PW-1 – father of the deceased who had claimed
that the deceased narrated the whole incident to him but he informed the
same to the police after performing the cremation ceremony and there is
every opportunity for possible concoction of a false version. Learned
counsel further submitted that the deceased had not named any of the
accused in her dying declaration which was recorded by two independent
witnesses on two different occasions and in both the dying declarations she
had stated that the person who poured the kerosene and set her on fire was
a stranger and not known to her. Learned counsel further submitted that
Dilubhai Valerabhai- a close relative of PW-1, who accompanied him to see
the deceased in the hospital has denied having any conversation with the
deceased. It was further submitted that the evidence adduced by the
prosecution are not worth acceptance and are not sufficient to draw the
inference of guilt of the accused, therefore, the respondent herein should
be exonerated of the charges leveled against him.
6) It is evident from the material on record that Rekhaben was removed
to the hospital with burn injuries and her statement was recorded by
Bhikhubhai Karsanbhai Parmar (PW-6), who was discharging duty with the
Police at the hospital. The dying declaration of the deceased was recorded
by the Executive Magistrate after following the due process of law. In view
of the above, it is relevant to quote the relevant portion of the
statements given by the deceased before the police authorities as well as
the Executive Magistrate which are as under:-
“ Date : 10.03.2003
My name is Rekhaben w/o Jayrajbhai Pujbhai Varu, Kathi Darbar by
caste, aged 25 years, occupation: household, Res. Gopalgram, Taluka
Chalala.
On being asked in person at Armeli illegible I state that I am
residing at above mentioned address with my mother in law, father in
law and husband and my husband is doing work of cutting diamond at
illegible. My parents are residing at Vandiya village and name of my
father is Jasubhai Vala and I was married before about two years from
today. I have no child.
Today in the early morning at about Five O’ clock the members of
my family were sleeping outside during that an unknown person came
near me and he woke me up and told me that wake up I have come to take
you, by saying so he took me in kitchen and poured kerosene on me and
kindled match and this unknown outsider person went away. This unknown
person was outsider and he had put on white cloths and I was started
burning on my whole body, therefore I was shouting so persons of my
house woke up and they got me admitted here in Amreli Government
hospital here. Here my treatment is continued. I am conscious. I have
no harassment of my mother in law, father in law or my husband.
The said incident has taken place today in early morning at
about Five O’ clock any outsider unknown person got me woke up and
took me in kitchen where he poured kerosene lying there and kindled
and threw match on me and this unknown person went away and this
person was outsider.
Such my fact as stated by me is true and correct.
Before
Sd/- Bhikhu Karsanbhai
P.S.O. Amreli City”
“BEFORE THE EXECUTIVE MAGISTRATE, AMRELI
Name of Hospital : Civil Amreli Ward No. Burns Bed No. 33
____________________________________________________________
1. What is your name : Rekhaben Jayrajbhai
2. Name of father/husband : Jayrajbhai Punjabhai
3. Your age : 25
4. Residence/address : Gopalgram Tal. Dhari.
5. At present where are you? : Civil Hospital Amreli.
6. What has happened to you?
7. How it was happened? All were sleeping in house. An unknown
person came and he made me woke up from place where I was sleeping and
he brought me in kitchen and he poured liquid in box lying in the
kitchen on me and unknown person kindled match stick and threw on me
and ran away. He was a male person and he was a outsider person.
8. At what time incident took place? : The incident has taken place
today in early morning. I don’t remember time.
9. At what place this incident has taken place? : Gopal gram at my
house.
10. Who were present at place of incident? : All members of my house
were sleeping.
11. Who brought you at clinic/hospital? My mother in law and my
husband’s elder brother etc. brought me.
12. Whether you have any physical difficulty? : No
13. If you have to say anything further then say? : I have nothing
further to say.
14. The date and time of starting of D.D. and
completion of D.D. : 8.25 A.M.
8.35 A.M.
10.3.2003.
There is no presence of police at the time when above deposition is
recorded.
Sd/- illegible
The patient is conscious and
D.D. is recorded before me.
Sd/- Medical Officer, Amreli 8.25 to 8.35 A.M. D.D. recorded in my
presence.
Sd/- Thumb impression of right leg
of
Rekhaben Jayraj as both hands are
burnt the thumb impression of Right
leg of Rekhaben is taken.
Sd/- Executive Magistrate, Amreli.”
7) It is relevant to point out here that in both the statements
mentioned above, the deceased has not named her husband or his family
members. Though when a specific question was put to her that what exactly
happened on that night, she narrated that on 10.03.2003, at about 5 o’clock
in the morning, when all other family members were sleeping in the house,
an unknown person came near her and took her into the kitchen. She further
narrated that he poured kerosene on her and set her on fire and went away
from the place. She further gave a statement that the unknown person was an
outsider who was wearing white clothes. On hearing her cries, other family
members also woke up and admitted her in the hospital at Amreli. There is
no denying the fact that the deceased was in her matrimonial home at the
time of the incident and all other family members were also present in the
house at the relevant time. In both the dying declarations recorded by two
independent witnesses after following the due process of law, she gave a
statement that the person was unknown and there was no involvement of her
in-laws or husband. Both the statements are consistent and there is no
contradiction as to the role of the respondent herein. From a perusal of
the statements made before the Executive Magistrate as well as the police
officer, it becomes very clear that there was no involvement of the
respondent herein in the commission of offence.
8) On the other hand, learned counsel for the State placed reliance upon
the deposition of the father of the deceased who deposed about the
involvement of respondent herein and in-laws of the deceased in the
commission of offence. It is relevant to quote the relevant portion of his
deposition on the basis of which the Sessions Court convicted the
respondent herein which is as under:-
“4. On dated 10th of Fagan month in the early morning a phone call
came at house of my uncle’s son Dilubhai that Rekhaben has been burnt,
therefore I and my uncle’s son Dilubhai and Manglubhai went at Amreli
Civil Hospital. Rekhaben was admitted in the hospital and treatment
was continued. Rekhaben was burnt on whole body. I could not see
therefore I went outside. After I felt something better I and Dilubhai
again went before my daughter, Rekhaben and asked her that what this
happened so Rekhaben told me that I have not done it. Rekhaben told me
that after giving torture for whole night thereafter she was taken in
kitchen and after pouring kerosene she was enlightened with match
stick. Jayrajbhai made Rekhaben woke up and took her in kitchen.
Rekhaben has not said as to who poured kerosene. Except this there
were no other persons present there. Rekhaben had not asked me
anything as to who enlightened match stick. When I asked Rekhaben she
stated that except those people no other person was present there.
Rekhaben told me that department came at that time I stated such that
person who enlightened match stick had put on white cloth and was
unknown person, because accused Punjbhai, Jarajbhai, Manuben and
Ramjuben had given such threat that her only one brother will not be
let live, therefore, she has not given real fact before department.
When Rekhaben had such talk with me at that time my uncle’s son
Dilubhai was present there. During the treatment at 2.15 PM in the
noon Rekhaben has expired. As Rekhaben was burnt therefore she has
expired.”
Cross examination by Advocate Shri G.A. Parikh for the accused.
“6. I and Dilubhai reached at hospital at eight to eight thirty o’
clock in the morning. It is not true that at Seven O’clock in the
morning I and Dilubhai reached at Civil Hospital, Amreli. It is true
that in my statement name of Manglubhai is not written.
7. When I reached at hospital at that time police already came
there. I don’t know that whether police recorded complaint of Rekhaben
in my presence or not. It is true that I identified thumb impression
of Rekhaben on the say of police. That thumb impression was of
Rekhaben. Mamlatdar went inside to record statement. It is true that I
identified thumb impression of Rekhaben on that statement. When I
reached near Rekhaben in the hospital at that time…. .was burnt. The
glucose bottles were not injected to her. She had thirst of water. She
could not bend lips. I caused her drink water and caused her eat ice
cream. It is not true that Rekhaben had totally no talk with me.”
9) Learned Sessions Judge, on the basis of the deposition of PW-1,
convicted the respondent herein for the offence under Section 302 of the
IPC. PW-1 deposed before the court that the deceased informed him that
after giving her torture for the whole night, she was taken to the kitchen
by the respondent herein and after pouring kerosene on her, matchstick was
lighted. He further deposed that except the respondent herein, no other
person was present at the time of the incident. It was further deposed
that the respondent herein threatened the deceased of dire consequences in
case of disclosure of the incident. In a nutshell, PW-1 deposed about the
cruelty and ill behavior meted out to the deceased at her matrimonial home.
10) The courts below have to be extremely careful when they deal with a
dying declaration as the maker thereof is not available for the cross-
examination which poses a great difficulty to the accused person. A
mechanical approach in relying upon a dying declaration just because it is
there is extremely dangerous. The court has to examine a dying declaration
scrupulously with a microscopic eye to find out whether the dying
declaration is voluntary, truthful, made in a conscious state of mind and
without being influenced by the relatives present or by the investigating
agency who may be interested in the success of investigation or which may
be negligent while recording the dying declaration. In the case on hand,
there are two sets of evidence, one is the statement/declaration made
before the police officer and the Executive Magistrate and the other is the
oral dying declaration made by the deceased before her father who was
examined as PW-1. On a careful scrutiny of the materials on record, it
cannot be said that there were contradictions in the statements made before
the police officer and the Executive Magistrate as to the role of the
respondent herein in the commission of the offence and in such
circumstances, one set of evidence which is more consistent and reliable,
which in the present case being one in favour of the respondent herein,
requires to be accepted and conviction could not be placed on the sole
testimony of PW-1. A number of times the relatives influence the
investigating agency and bring about a dying declaration. The dying
declarations recorded by the investigating agencies have to be very
scrupulously examined and the court must remain alive to all the attendant
circumstances at the time when the dying declaration comes into being. In
case of more than one dying declaration, the intrinsic contradictions in
those dying declarations are extremely important. It cannot be that a dying
declaration which supports the prosecution alone can be accepted while the
other innocent dying declarations have to be rejected. Such a trend will be
extremely dangerous. However, the courts below are fully entitled to act on
the dying declarations and make them the basis of conviction, where the
dying declarations pass all the above tests.
11) The court has to weigh all the attendant circumstances and come to
the independent finding whether the dying declaration was properly recorded
and whether it was voluntary and truthful. Once the court is convinced that
the dying declaration is so recorded, it may be acted upon and can be made
a basis of conviction. The courts must bear in mind that each criminal
trial is an individual aspect. It may differ from the other trials in some
or the other respect and, therefore, a mechanical approach to the law of
dying declaration has to be shunned.
12) On appreciation of evidence on record, we are of the considered view
that the dying declarations of the deceased recorded by the police officer
as well as the Executive Magistrate are fully corroborated and there is no
inconsistency as regards the role of the respondent herein in the
commission of offence. From a perusal of the statement recorded by Bhiku
Karsanbhai, P.S.O., the thumb impression of Rekhaben (since deceased) which
had been identified by her father-Sri Vala Jaskubhai Suragbhai as also his
cross-examination in which he admitted that police had already come there
and he had identified her thumb impression and Mamlatdar had gone inside to
record statement, there is no reason as to why Rekhaben would give names of
her husband and her in-laws in the alleged statement given to her father.
A dying declaration is entitled to great weight. The conviction basing
reliance upon the oral dying declaration made to the father of the deceased
is not reliable and such a declaration can be a result of afterthought.
This is the reason the Court also insists that the dying declaration should
be of such a nature as to inspire full confidence of the Court in its
correctness. The Court has to be on guard that the statement of deceased
was not as a result of tutoring, prompting or a product of imagination. The
Court must be further satisfied that the deceased was in a fit state of
mind after a clear opportunity to observe and identify the assailants. Once
the Court is satisfied that the declaration was true and voluntary,
undoubtedly, it can base its conviction without any further corroboration.
It cannot be laid down as an absolute rule of law that the dying
declaration cannot form the sole basis of conviction unless it is
corroborated. The rule requiring corroboration is merely a rule of
prudence.
13) The burden of proof in criminal law is beyond all reasonable doubt.
The prosecution has to prove the guilt of the accused beyond all reasonable
doubt and it is also the rule of justice in criminal law that if two views
are possible on the evidence adduced in the case, one pointing to the guilt
of the accused and the other towards his innocence, the view which is
favourable to the accused should be adopted.
14) After considering the evidence and the judgments of the courts below,
we are of the opinion that the evidence available on record and the sole
evidence of the father of the deceased as compared to the dying declaration
do not inspire confidence in the mind of this Court to make it the basis
for the conviction of the respondent-accused. Hence, the appeal fails and
is accordingly dismissed.
..…………….………………………J.
(KURIAN JOSEPH)
.…....…………………………………J.
(R.K. AGRAWAL)
NEW DELHI;
JULY 11, 2016.