State of Gujarat vs Pathubha Harishinh Jadeja and Others

Rajesh H. Shukla, J.—The present appeals are directed against the judgment and order dated 27.5.1987 passed by the learned Additional Sessions Judge, Kutch at Bhuj in Sessions Case No. 35/86 recording acquittal of all accused for offence u/s 302 of the Indian Penal Code, and recording conviction of the respondent-original accused for offence under Sections 324 and 342 of IPC and also for offence u/s 498A. The learned Additional Sessions Judge has imposed RI for 3 years for the offence u/s 324 of IPC upon accused No. 1-Pathubha Harisinh Jadeja and accused No. 2-Chandba, RI for 1 year for offence u/s 342 of IPC, RI for 3 years in respect of offence u/s 498-A of IPC and imposed a fine of Rs. 500/-, and in default, further imprisonment for 6 months. Accused No. 3-Ramba Aluji Jadeja & accused No. 4-Jivuba Aluji Jadeja have been granted benefit of probation u/s 4(1)(3) of the Probation of Offenders Act and, therefore, no sentence has been imposed on them.

The short facts of the case, briefly summarized, are that the deceased Laxmiba was married to accused No. 1-Pathubha Harisinh on 3.3.1986 and was residing with the accused No. 1 at Village Lakdiya, Dist. Kutch, at the farm house situated near the field. It is averred that after the marriage, deceased Laxmiba was treated well for 11/2 months initially. However, thereafter, deceased Laxmiba was abused and beaten by accused Nos. 2, 3 & 4. It is alleged that on 3.3.86 accused No. 2 had, without any reason, beaten deceased Laxmiba and had also got her hairs removed, and one month thereafter, again, accused Nos. 2, 3 & 4 closed the door of the house and after denuding deceased Laxmiba, caused burn injuries to her on both hands, back, buttocks and also genital parts. As a result thereof, when deceased started shouting, accused Nos. 3 & 4 are alleged to have caught hold of her to shut her mouth. It is also alleged that accused No. 1, though was present, did not intervene to save her, on the contrary, threatened to kill her if she reports the incident to anybody. It is alleged that after the incident, deceased Laxmiba was kept locked inside the house and was not allowed to go out anywhere. However, on or around 12.3.1986, when accused No. 1 was not at the house, a relative brother of the deceased Laxmiba, Daya Koli, came there and Laxmiba escaped with him from Village Lakdiya in the evening and came to Ahmedabad, where the maternal grand parents are residing. Thereafter, she reported the incident to the maternal grand parents and she was removed to L.G. Hospital in the Burns Ward where she lodged a complaint. On the basis of the complaint, the PSI, Maninagar Police Station registered the complaint, being C.R. No. I-29/86, for the alleged offences under Sections 324, 342, 498A r/w Section 34 & 114 of IPC. However, on the death of the deceased, the offence u/s 302 of IPC was subsequently added.

On the basis of the complaint/FIR, investigation was carried out. After the investigation was over, charge-sheet was submitted and the learned Judicial Magistrate (First Class), after ascertaining as regards papers given to the accused, committed the case to the Court of Sessions as the offence u/s 302 of IPC was triable by the Court of Sessions.

After ascertaining as regards the papers made available to the accused, the learned Addl. Sessions Judge framed the charges for offence under Sections 302, 498A as well as Sections 324 and 342 of IPC and proceeded with the trial. In order to bring home the charges levelled against the accused persons, the prosecution has examined the following witnesses:

(i) Sureshchandra Jairam PW-1 Exh. 7

(ii) Daya Kara PW-2 Exh. 10

(iii) Mulaba Tejabha PW-3 Exh. 20

(iv) Mukundbhai Manilal PW-4 Exh. 21

(v) Ramju PW-5 Exh. 26

(vi) Baldev PW-6 Exh. 28

(vii) Jaliben Murubhai PW-7 Exh. 32

(viii) Ramdevsinh PW-8 Exh. 34

(ix) Harjibhai Raghubhai PW-9 Exh. 35

(x) Hayatkhan Baloch PW-10 Exh. 36

The prosecution has also produced the documents with the list, which also include the yadi for dying declaration (Exh. 8), panchnama for the scene of offence (Exh. 12), inquest panchnama (Exh. 13), postmortem notes (Exh. 14), discovery panchnama (Exh. 27) and panchnama (Exh. 31).

After recording of evidence was over, the learned Addl. Sessions Judge, Kutch, recorded further statement of the accused u/s 313 of the Cr.P.C.. The further statement of the accused persons had denied the imputations levelled against them and they have not stated anything in their further explanation.

After hearing the learned Public Prosecutor as well as the learned advocate for the accused persons, the learned Addl. Sessions Judge, Kutch at Bhuj, recorded the acquittal of the accused persons for the alleged offence u/s 302 of IPC. However, he recorded conviction of accused Nos. 1 & 2 for offence u/s 498A as well for offence under Sections 324, 342 of IPC and imposed sentence and fine as stated above. However, the learned Addl. Sessions Judge, though recorded conviction of the accused Nos. 3 & 4, has ordered for giving the benefit under the Probation of Offenders Act and therefore has not imposed any sentence or fine for the said accused.

It is this judgment which has been challenged before this Court by way of Criminal Appeal No. 504 of 1987 by the State, challenging the recording of acquittal of the Accused for the offence u/s 302 of IPC though the Court below has recorded conviction of the Accused persons for offence u/s 498A and 324 of IPC. The State has also filed Criminal Appeal No. 505 of 1987 challenging the grant of benefit under the Probation of Offenders Act to the Accused Nos. 3 and 4 contending inter alia that in view of the alleged offence the benefit ought not to have been granted, and therefore, the present Appeal has been filed. It is required to be mentioned that the Accused persons have not filed any Appeal challenging their conviction for offence under Sections 498A and 324, etc. of IPC. Therefore, since it has not been challenged, it does not require any elaborate discussion with regard to the conviction for offence under Sections 498A and 324 of IPC. However, it is required to be focused on the aspect of acquittal for offence u/s 302 of IPC.

Therefore, the State has challenged the impugned judgment and order recording acquittal qua offence u/s 302 of IPC though conviction has been made for offence u/s 498A and 324 of IPC. The main emphasis of the appeal by the State is that if the evidence, including the FIR (Exh.22) given by the deceased herself at Exh.9 has been believed and accepted for recording conviction u/s 498A an 324 of IPC, then on the same set of evidence the Court below has erred in appreciating the evidence for recording the acquittal for offence u/s 302 of IPC. The injuries alleged to have been caused to the deceased are also supported by the medical evidence, including PM report (Exh.14) and the manner in which the injury has been caused as stated by the deceased in her DD (Exh.9) would establish the offence u/s 302 of IPC, and atleast in alternate for offence u/s 304 Part-II of IPC.

The Accused persons, by the aforesaid Appeal No. 505 of 1987 have challenged the impugned judgment and order mainly on the ground that the Court below has erred in appreciating the material evidence, including the crucial evidence in the form of DD of the deceased at Exh.9, when there is discrepancies, including the endorsement of the Doctor as regards the condition of the deceased patient.

Learned APP Mr. Dave has strenuously submitted that the court below has failed to appreciate the material evidence in the form of FIR, DD and also the medical evidence corroborating this evidence and though has accepted the prosecution case, recording conviction for the offence u/s 498A as well as Sections 324 and 342 of IPC, has not accepted the same evidence for the offence u/s 302 of IPC. It was submitted that the theory of the prosecution and the version given by the deceased in her FIR as well as DD, has remained consistent as regards the incident which clearly make out a case for the alleged offence u/s 302 of IPC. It was submitted that the manner in which the burn injuries were caused to the deceased by denuding her would attract Section 300 and the offence is committed u/s 302 of IPC.

Learned APP Mr. Dave also submitted that it is not disputed that it was a homicidal death caused by such injuries inflicted on the deceased by the accused persons and it was caused in such a ghastly and cruel manner and intention or at least knowledge could easily be attributed that such injuries are likely to result into death. He also submitted that it is required to be appreciated that even after the injury was caused by denuding her and accused Nos. 3 & 4 caught hold of her and thereafter she was locked inside for days together, which itself is sufficient to attract punishment for offence u/s 302 of IPC or, in the alternative, for offence u/s 304 Part-I of IPC.

Learned APP Mr. K.T. Dave referred to FIR (Exh.22) given by the deceased Laxmiba and submitted that she has narrated about the incident and also clearly stated that even after this, she was locked inside the house. She has also stated about the active role attributed to Accused Nos. 2 to 4 and also Accused No. 1, who is alleged to have remained indifferent though he was present. Further, he is said to have threatened her that if she tells anybody she will be killed. Learned APP Mr. Dave referred to the DD at Exh.9 and submitted that she has also narrated in the same manner in the DD specifically stating as to what had transpired. Learned APP Mr. Dave pointedly referred to the noting that as the deceased was burnt, she has refused to put the thumb impression which is also recorded. Learned APP Mr. Dave submitted that merely because it does not bear thumb impression, does not make the DD unreliable. Learned APP Mr. Dave referred to the deposition of the Executive Magistrate - Sureshbhai Jariram at Exh.7 and submitted that his evidence also corroborated the FIR and DD. He has stated in his deposition that he has not taken the thumb impression as it was refused, and therefore, he had made a note about it in the DD. Learned APP Mr. Dave submitted that the Executive Magistrate has also stated in his deposition that he had confirmed as to whether the deceased patient was conscious and only after that he has recorded the DD and has also obtained the endorsement of the Doctor. Learned APP Mr. Dave, therefore submitted that even in the cross-examination he has remained consistent and when he recorded the DD, the deceased patient was conscious though she had a pain. He has denied the suggestion that when he recorded the DD, the relatives or the police were present. He has also denied the suggestion that the endorsement of the Doctor even on the police yadi (Exh.8) about the patient being conscious was obtained subsequently. Therefore, learned APP Mr. Dave submitted that on same set of evidence, while recording the conviction for other offence u/s 498A as well as 324 the learned Sessions Judge has committed an error in not appreciating the evidence for offence u/s 302 of IPC. Learned APP Mr. Dave referred to the deposition of PW-4, I.O. Mukundbhai at Exh.21, and submitted that he has also supported the prosecution case. He has recorded the complaint/FIR of the deceased, which is at Exh.22 and he has also stated that he had prepared the police yadi for the Executive Magistrate and in the cross-examination, he has denied the suggestion that when the DD was recorded, he and Mukundbhai were present. He has also stated that when he recorded the complaint/FIR of the deceased Laxmiba, she was conscious and was able to talk and has also confirmed that after the recording of DD when he received the copy, the deceased was conscious. Learned APP Mr. Dave submitted that the Court below has failed to appreciate this evidence, and as reflected in the judgment, has picked up few sentences from the deposition of witnesses, including the present witness, i.e. PW-4 Mukundbhai, I.O. (Exh.21) and it has been read out while appreciating the evidence. For that purpose, learned APP Mr. Dave pointedly referred to the observations made by the Court below stating that when he has stated that when he was present in the hospital right from the time when deceased was admitted. Similarly, he has stated that he was present in the hospital when the Executive Magistrate arrived. Learned APP Mr. Dave submitted that there cannot be any quarrel or dispute with the I.O., or other relatives could be present in such a situation, but, when DD was recorded it has been specifically clarified that nobody is present.

Learned APP Mr. Dave, therefore submitted that the Court below has failed in appreciating the evidence and, particularly the same set of evidence has been considered, and on appreciation of the facts for recording conviction u/s 498A, 324, etc. which has also been believed and accepted, then it cannot be disbelieved or looked upon with suspicion for the purpose of offence u/s 302 of IPC. Learned APP Mr. Dave also submitted that if the evidence is accepted or read as a whole and it is appreciated, it would emerge that the deceased Laxmiba was dealt with cruelty and when the offence u/s 498A is also believed and accepted, whether it could be an offence u/s 302 of IPC or not, is required to be considered in the present Appeal. He emphasized and submitted that if this evidence is believed and accepted that the deceased Laxmiba was dealt with cruelty and the manner in which the burn injuries were caused to her and thereafter she was locked inside the house and, when Accused Nos. 3 and 4 caught hold of her and Accused No. 2 had caused such burn injuries, it would certainly attract Section 302 of IPC or alternatively Section 304 Part-I.

Learned APP Mr. Dave submitted that for the purpose of ascertaining about the intention of the Accused persons, the motive would be relevant. He submitted that Accused No. 1 had married to deceased Laxmiba, who was aged about 15-16 years. Accused No. 2 is the sister-in-law and Accused Nos. 3 and 4 are her daughters, who are even elder than the deceased Laxmiba. As the Accused No. 1 had married again, if the marriage of Laxmiba was to sustain, in all probabilities, the issue out of that wedlock will get the assets or whatever the Accused No. 1 had. In that event the Accused No. 2, the sister-in-law and the daughters may not get anything and they had apprehension that if the Accused No. 1 having married Laxmiba, lives peacefully and has also children, it would affect their future and that was the motive for creating trouble in the marriage life and they had, with this motive, started harassing the deceased Laxmiba and ultimately the incident took place, which resulted in death of Laxmiba. Therefore, as this motive is very evident and clear, the offence u/s 302 can be said to have been established that they caused such an injury only with an intention to fulfill the motive. The learned Judge has failed to appreciate this aspect while recording acquittal u/s 302 of IPC.

Learned APP Mr. Dave submitted that even if the intention is not attributed that they had no intention to kill her, but it is very evident that they had intention to harass her and the deceased was dealt with cruelty. Therefore, the knowledge could be attributed that when such injuries are caused, it is likely to result in death. He, therefore, submitted that the recording of acquittal qua offence u/s 302 of IPC is improper, and atleast the Accused persons should have been convicted for the offence u/s 304 of IPC. Learned APP Mr. Dave submitted that the Accused Nos. 3 and 4, who are the daughters of Accused No. 2, were infact elder than the deceased Laxmiba, and still considering the age and the fact that they are married, perhaps the benefit under the Probation of Offenders Act has been given. It was submitted that it ought not to have been given when they are charged with serious and heinous offence. Learned APP Mr. Dave referred to and relied upon the judgment reported in Jenaji Manaji Thakore Vs. State of Gujarat, and emphasized the observations made therein. Learned APP Mr. Dave submitted that the learned Judge has failed to appreciate the cause of death and septicemia was the consequence or the effect of such injuries which he has failed to appreciate. For this purpose he has relied upon the judgment in the case of Jenaji Manaji Thakore Vs. State of Gujarat, and submitted that in this case also the injury and the PM clearly suggested the cause of death and the infection was the result of the injury and the Doctor has also stated that the injury was such, which could result in death, and on the basis thereof, the conviction was altered from Section 302 - 304 Part-I. Learned APP Mr. Dave therefore submitted that in the present case also, injuries were such, which could have caused septicemia, and the learned Judge, by considering the cause of death and the aspect of gravity of the offence has failed to appreciate the evidence and has recorded the acquittal for the offence u/s 302 of IPC, which is improper, illegal and contrary to the evidence on record.

Learned advocate Mr. Avinash Mankad for Accused Nos. 1 and 2 has stated that the Accused No. 1 has expired. He has stated that the judgment and order recording acquittal for offence u/s 498A as well as 324, is just and proper. It was submitted that there are many infirmities in the prosecution case, and even with regard to motive, the prosecution has not been able to establish. Learned Advocate Mr. Mankad submitted that the DD, which has been strongly referred to and relied upon by the prosecution, to establish the offence against the accused, suffers from infirmities and therefore cannot be relied upon. For that purpose, learned advocate Mr. Mankad submitted that it is required to be appreciated that the Doctor, who had given the treatment to the deceased at LG Hospital, Ahmedabad, is not examined. Moreover, the injury certificate is also not produced. Learned advocate Mr. Mankad submitted that, had the injury certificate been produced or the Doctor who had given the treatment at LG Hospital, Ahmedabad was examined, it would have thrown the light about the condition of the deceased. Learned advocate Mr. Mankad strenuously submitted that the evidence of the Doctor, who had given the treatment at LG Hospital, Ahmedabad, would have been very crucial and relevant when there is no endorsement of the Doctor on the DD itself as regards the condition of the patient. Therefore, learned advocate Mr. Mankad submitted that, before relying upon the DD, the manner in which it is recorded, has to be seen. Learned advocate Mr. Mankad therefore strenuously submitted that, as there is no evidence as regards the condition of the patient by the Doctor, who had given the treatment at LG Hospital coupled with the fact that there is no endorsement on the DD as regards the condition of the patient , it cannot be believed that the deceased was in a fit condition to give the DD. Learned advocate Mr. Mankad emphasized and submitted that the Executive Magistrate who had recorded the DD has admitted that it was his first DD which he recorded. Therefore, it was submitted that since he had no experience, he could have committed the mistake in not taking proper care.

Learned advocate Mr. Mankad also submitted that it is also required to be appreciated that the DD has been recorded after some time. It was submitted that the deceased was admitted in the LG Hospital, Ahmedabad on 3.3.1986 and DD was recorded on 3.3.1986 whereas she died on 10.3.1986. Therefore, learned advocate Mr. Mankad submitted that there are every chances that after she was admitted in the LG Hospital, Ahmedabad, the relatives may have tutored her on the basis of which she may have given a statement in the DD implicating the accused persons. Moreover, learned advocate Mr. Mankad submitted that the maternal grandfather of the deceased was in the police department and therefore there is every possibility that he had remained present while DD was recorded, and at his instance it could have been recorded as tutored by him to the deceased.

Learned advocate Mr. Mankad also submitted that the incident is of 1986 and as stated, the accused No. 1 has expired. The accused No. 2 who was aged 40 years at the relevant time, would be aged about 61 years at present and the daughters - accused Nos. 3 and 4, who were aged about 19 and 18 years would be aged 40 and 31 years, living at their matrimonial house with the family, and therefore, the findings recorded by the Court below would not be disturbed. Learned advocate Mr. Mankad further submitted that infact considering the age, the evidence and the lapse of time, the Court may consider to alter the sentence and reduce it to the sentence having undergone as sufficient sentence.

Learned advocate Mr. N.K.Majmudar for the Accused Nos. 3 and 4 submitted that his submission with regard to the aspect of benefit given to the Accused Nos. 3 and 4 under the Probation of Offenders Act may be considered. It was submitted that for the purpose of giving the benefit, the Court is required to consider the criteria as provided in the statute, i.e. Section 4 of Probation of Offenders Act. He referred to Section 4 of Probation of Offenders Act and submitted that considering the age as well as the fact that they are females and married, Accused Nos. 3 and 4 are given the benefit under the Probation of Offenders Act, which may not be disturbed. The learned Advocate in support of his submission, referred to and relied upon the judgment of the Hon''ble Apex Court reported in AIR 1983 SC 359 and submitted that the age of the Accused at the time of incident is required to be considered and in the present case also the Accused Nos. 3 and 4 were very young at the time of incident and therefore the benefit is rightly given. It has been observed that the benefit cannot be extended to the Accused who is convicted for offence punishable with life imprisonment. Moreover, he emphasized that the Hon''ble Supreme Court in that case also did not interfere as the benefit was already given to the Accused since many years. Learned Advocate Mr. Majmudar submitted that in the present case Accused Nos. 3 and 4 are married and the benefit is given, and therefore, it may not be disturbed. Learned advocate Mr. Majmudar has also referred to relied upon the judgment of the Hon''ble Apex Court reported in Masarullah Vs. State of Tamil Nadu, and submitted that it has been observed in this judgment that the age of the Accused has to be considered at the time of the offence. In the present case also, the Accused at the time of the offence were very young and the benefit has been rightly given. Learned advocate Mr. Majmudar also relied upon the judgment of the Hon''ble Apex Court reported in Satyabhan Kishore and Another Vs. The State of Bihar,

In view of the rival submissions, it is require to appreciate the submissions made by the learned APP as well as learned advocate for the accused, emphasizing the reliability of the DD. However, for that purpose evidence is required to be scrutinized, particularly the DD at Exh.9, and the yadi at Exh.8 is required to be seen. The yadi at Exh. 8 bears the endorsement "patient is conscious". It is also recorded in the yadi, sent by the Police Inspector to the Executive Magistrate, that, ''one woman named Laxmiba - wife of Pathuba Harisinh Jadeja, village Lakadia, District Kachchh, has been given the burn injuries by the husband as well as sister-in-law and Ors. and is admitted in the burns ward of the LG Hospital. In the DD at Exh.9, in the column as to the occurrence of the incident, it has been recorded as stated by the deceased, clearly stating that her nephew and sister-in-law had given her burn injuries at different parts of the body. The Executive Magistrate - Surechchandra Jairam, who has recorded the DD is examined. In his deposition at Exh.7, he has clearly stated that he received yadi on 3.3.1986 at 9:15 pm and therefore he reached the hospital by 9:45 pm in the burns wad. He has also stated that he had verified from the Doctor as regards the condition of the patient and after having confirmed about the condition of the patient, the Doctor had made the endorsement on the yadi. He has stated that thereafter he recorded the DD. He has also stated that when he proceeded to record the DD in the form of question and answer, the patient was conscious. She was able to answer though she was having pain. He has specifically stated that after recording the DD he asked her to put her thumb impression, but the patient had refused, for which he made a note in the DD, which can also be seen in DD at Exh.9. In the cross-examination he has stated that it was his first DD, which he had recorded. Thus, the deposition of the Executive Magistrate supports the DD and also stated about the condition of the deceased patient. He has also obtained an endorsement on the yadi from the Doctor as regards the condition of the patient. It is, in these circumstances, the submissions made by learned advocate Mr. Mankad are required to be appreciated. The deposition of the Executive Magistrate at Exh.7 is corroborated by the medical evidence in the form of an endorsement on the yadi at Exh.8. Merely because the Executive Magistrate has not obtained the endorsement on the DD about the condition of the deceased, by itself would not make the DD unreliable and cannot be discarded.

It is well settled that the DD can be relied on if it does not suffer from any basic infirmity and inspire confidence. The Hon''ble Apex Court, dealing on this aspect in catena of pronouncements, has laid down the general principle on which this species of evidence is admitted, is that they are declarations made in extremity, when the person is at the point of death and when every hope of of his world is gone. At that point of time every motive to falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth. Such a solemn situation is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice. A dying declaration, therefore, enjoys almost sacrosanct status as a piece of evidence coming as it does from the mouth of the deceased victim. Therefore, such a evidence is very important and reliable piece of evidence though it requires a closer scrutiny by the Courts. The Court is required to ascertain the DD as true and does not suffer from any basic infirmity. Moreover, it is also well settled that the conviction can be based merely on the basis of DD even without corroboration. In the facts of the present case, as the Doctor, who had given the treatment at LG Hospital, is not examined and therefore, as regards the condition of the patient, some corroboration is required before the DD can be relied upon. A useful reference can be made to the judgment of the Hon''ble Apex Court in case of Koli Chunilal Savji v. State reported in 2000(4) GLR 3298, which clearly answers the contentions raised by the learned advocate Mr. Mankad for the accused. The specific contention that the DD ought not to have been relied upon, as there was no endorsement of the Doctor on the DD and that the Doctor was not examined, is also considered by the Hon''ble Apex Court and such a contention is negatived by the Hon''ble Apex Court. It has been observed, "the Court is unable to accept the submission of the learned Counsel that two dying declarations cannot be relied upon as the doctor has not been examined and the doctor has not made any endorsement on the dying declaration with regard to the condition of the deceased, the Magistrate who recorded the dying declaration has been examined as a witness. She has categorically stated in her evidence that as soon as she reached the hospital in the surgical ward of Dr. Shukla, she told the doctor on duty that she is required to take the statement of Dhanuben and she showed the doctor the police yadi. The doctor then introduced her to Dhanuben and when she asked the doctor about the condition of Dhanuben, the said doctor categorically stated that Dhanuben was in a conscious condition. It further appears from her evidence that though there has been no endorsement on the dying declaration recorded by the Magistrate with regard to the condition of the patient but there has been an endorsement on police yadi, indicating that Dhanuben was fully conscious. In view of the aforesaid evidence of the Magistrate and in view of the of doctor on the police yadi and no reason having been ascribed as to why the Magistrate would try to help the prosecution, the Court sees no justification in the comments of the learned Counsel that the dying declaration should not be relied upon in the absence of the endorsement of the doctor thereon." This clearly answers the contention raised by the learned advocate Mr. Mankad for the accused persons.

Further, the Hon''ble Apex Court in a judgment in the case of Laxman Vs. State of Maharashtra, referring to the appreciation of the evidence regarding dying declaration with reference to Section 32 of the Evidence Act has clearly laid down the guidelines that the dying declaration would be reliable if it is truthful and certification by Doctor on the dying declaration itself is essentially rule of caution and voluntary and truthful nature of the dying declaration can be established otherwise. The Hon''ble Apex Court has again focused on the issue raised in the present case by the learned advocate for the accused and has further observed:

Bearing in mind the aforesaid principle, let us now examine the two decisions of the Court which persuaded the Bench to make the reference to the Constitution Bench. In Paparambaka Rosamma and Others Vs. State of Andhra Pradesh, the dying declaration in question had been recorded by the Judicial Magistrate and the Magistrate had made a note that on the basis of answers elicited from the declarant to the questions put he was satisfied that the deceased is in a fit disposing state of mind to make a declaration. The Doctor had appended a certificate to the effect that the patient was conscious while recording the statement, yet the Court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and was made when the injured was in a fit state of mind since the certificate of the Doctor was only to the effect that the patient is conscious while recording the statement. Apart from the aforesaid conclusion in law the Court had also found serious lacunae and ultimately did not accept the dying declaration recorded by the Magistrate. In the latter decision of this Court in Koli Chunilal Savji v. State of Gujarat (supra), it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The Court relied upon the earlier decision an in Ravi Chander and Others Vs. State of Punjab, wherein it had been observed that for not examining by the doctor the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The Magistrate being a disinterested witness and a responsible officer and there being no circumstances or material to suspect that the Magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, the question of doubt on the declaration, recorded by the Magistrate does not arise.

Therefore, the moot question which is required to be considered is whether the endorsement of the doctor recording the condition of the deceased patient on the dying declaration itself is a must in every case and the answer has to be in negative. Therefore, keeping in mind the guidelines laid down by the Hon''ble Apex Court as discussed hereinabove, the underlying idea that when the dying declaration is recorded the victim must be conscious and in a fit condition to make such statement freely and voluntarily, has to be ascertained. Normally, the endorsement is obtained as regards the condition of the patient/victim. However, merely because such an endorsement is not made on the DD itself, that by itself would not be fatal and the DD cannot be brushed aside only for such reason and it cannot be said that it suffers from any basic infirmities. Further, as a matter of caution, before relying upon such DD, further corroboration is looked for, and as discussed above, the DD and the condition of the victim is corroborated by the endorsement of the Doctor on the police yadi (Exh.8) and also deposition of the Executive Magistrate - Sureshchandra Jairam, who has been examined as PW-1 at Exh.7. Thus, the ultimate object for the purpose of relying on the DD and the safeguard provided by the guidelines by the judicial pronouncement of the Hon''ble Apex Court make it clear that it is required to be ascertained as regards the condition of the patient / victim when it is not specifically recorded on the DD. This could be ascertained by looking for a corroborative evidence in the form of an endorsement in the police yadi or the deposition of the Executive Magistrate, and if it supports or corroborates the prosecution case, it will certainly give the reliability to the DD. In other words, the endorsement of the Doctor regarding condition of the patient is one of the safeguards provided for relying upon the DD and if such an endorsement is found to be in the form of history in the medical case papers or on the police yadi coupled with the fact that the Executive Magistrate, who has recorded the DD, has been examined, corroborating the medical evidence in the form of either of the case history recorded by the Doctor or the endorsement made by the Doctor on the police yadi, or the deposition of the Doctor would be sufficient, and not recording any endorsement on the DD itself would not make it unreliable, otherwise it would be amounting to adopting a hyper-technical approach frustrating the very purpose and object of recording the DD.

It is, in these circumstances, the submissions made by learned advocates Mr. Mankad and Mr. Majmudar for the accused persons are required to be appreciated. It is also required to be appreciated that as pointed by the learned APP Mr. K.T.Dave, the DD has been found to be reliable and on the basis of material evidence on record, including this DD, the conviction has been recorded by the Court below for offence u/s 498A as well as Section 324 of IPC. Therefore, as rightly submitted by the learned APP, when same set of evidence and material is acceptable and believed by the Court below for the offence u/s 498A as well as Section 324, it could not have been ignored or overlooked for offence u/s 302 of IPC. If the complaint at Exh.22 coupled with the DD at Exh.9 is read, the same itself suggests the ghastly manner in which the burn injuries caused to the deceased. It is also required to be stated at the cost of repetition about the manner in which the burn injuries caused to the deceased after denuding her. Accused Nos. 2 to 4 have not only caused her burn injuries but also the have locked her inside for days together. If this aspect is appreciated in light of the version stated by the deceased victim in her DD at Exh.9, the acquittal recorded by the Court below for the offence u/s 302 of IPC cannot be sustained. There is no dispute with regard to the submissions that for the offence u/s 302 of IPC the motive in such cases is required to be established and as there is no evidence coupled with the fact that the deceased had survived for some time and thereafter she died, would not attribute any intention to kill her. However, as submitted by learned APP Mr. K.T.Dave, even if the intention is not attributed or even if it is accepted for the sake of argument that the accused had no such intention to cause death of the deceased, still the nature of injuries, the manner in which the injuries are caused and subsequent conduct of locking her inside for days together, clearly suggest that the harassment was made to the deceased victim. Further, the harassment is caused for which the motive could be easily inferred that the deceased victim had married to the accused No. 1 and if her married life is peaceful, then the children out of the wedlock would succeed to the property of the deceased and it would certainly cause prejudice to the interest of the widow, sister-in-law, accused No. 2 and her two daughters - accused No. 3 and 4. Further, once it is established that such injuries have been caused by way of harassment, the knowledge could certainly be attributed that such an injury is likely to cause death and therefore it can be a homicidal death not amounting to murder falling in part 304 Part-II of IPC.

As the offence under Sections 498A and 324 has been held to be proved by the prosecution and the conviction has been recorded, the ingredients for offence u/s 498A are established that the deceased was treated with cruelty and if such an act of cruelty has ultimately resulted in death of the deceased, which is the direct impact of the injuries, then it is not sufficient to readily accept the defence that though the offence u/s 498A read with Section 324 of IPC may be believed or accepted, yet on the same set of evidence, the offence u/s 302 of IPC cannot be said to have been proved or established. If, on the basis of material evidence on record and on appreciation thereof by the Court below, the charges for offence u/s 498A as well as 324 of IPC are held to have been established coupled with the fact that such a harassment or cruelty for which the offence u/s 498A is accepted as established and the injuries which have been caused for the harassment has ultimately caused death, then it would also on the same set of evidence would establish that it was a homicidal death. May be the evidence for the offence u/s 302 as regards the intention may not have been there, nevertheless the case would squarely fall u/s 304 Part -II of IPC inasmuch as the knowledge could be attributed to the accused persons that such a ghastly act has been done with the knowledge that it is likely to cause death, but without intention to cause death or to cause such bodily injury as is likely to cause death (emphasis supplied). It is required to be emphasized that it is well accepted that the knowledge is the knowledge of likelihood of death. In the facts of the case, can it be said that when the deceased victim was denuded and the accused persons, particularly accused Nos. 2, 3 and 4 having caused such injuries, as discussed hereinabove and also keeping her locked for days together, and thereafter keeping a person without any medical aid, could lead to the death and the knowledge that the death was the result of causing such injury, would fulfill the requirements of Section 304 Part-II of IPC. Therefore, even if there is no premeditation or intention, the manner in which the injuries are caused to the deceased and thereafter subsequent conduct would squarely suggest that the knowledge of likelihood of causing the death of the victim by such an injury, would be punished u/s 304 Part-II of IPC if not u/s 302.

Therefore, having heard learned APP for the State and considering the mitigating circumstances pressed by learned advocate Mr. Mankad as well as Mr. Majmudar appearing for the accused persons, and the submissions made by learned advocate Mr. Mankad as well as Mr. Majmudar for the Accused Nos. 3 and 4 (daughters), who have been married, settled in their matrimonial life after having been given the benefit under the Probation of Offenders Act, Criminal Appeal No. 505 of 1987 filed by the State, challenging the grant of benefit under the Probation of Offenders Act to Accused Nos. 3 and 4 on various grounds, inter alia that it ought not to have been granted, is required to be considered in light of the rival submissions and the observations made by the Courts, to which the learned advocate Mr. Majmudar has drawn our attention to the judgment of the Hon''ble Apex Court reported in AIR 1986 SC 654 and page 359 as well as judgment reported in Satyabhan Kishore and Another Vs. The State of Bihar, Hon''ble Apex Court in a judgment reported in AIR 1986 SC 654 has considered the scheme of Probation of Offenders Act and has observed that, ''in case of offender under the age of 21 years on the date of commission of offence, the Court is expected ordinarily to give benefit of provisions of the Act and there is a embargo on the power of the Court to award sentence unless the Court considers otherwise. Having regard to the circumstances of the case, including the nature of offence and the character of the offender and the reason for awarding sentence have to be recorded''. The provisions of Section 6 of the Probation of Offenders Act provide that, ''when a person under 21 years of age is found guilty of having committed an offence, punishable with imprisonment (but not imprisonment for life), the Court, by which the person is found guilty, shall not sentence him imprisonment unless it is satisfied that having regard to the circumstances of the case, including the nature of the offence and the character of the offender, it would not be desirable to deal with him under Sections 3 or 4''. Therefore, though the conviction has not been recorded by the impugned judgment for offence u/s 302 and it has been recorded u/s 498A and 320, which has been, as discussed above, altered to the conviction for offence u/s 304 Part-II. Therefore, it would be an offence punished with imprisonment for life, and it is in these circumstances, the phrase referred to hereinabove suggesting about having regard to the circumstance of the case, the nature of offence and the character of offender, etc., this Court is of the opinion that since the benefit is already given by the Court below for a long time, it may not be disturbed even after recording conviction for offence u/s 304 Part-II for Accused Nos. 3 and 4. However, the Accused No. 2 would not be entitled to any such benefit even after consideration of any mitigating circumstances, including the age of the Accused No. 2 at the relevant time and at present she is stated to be 61 years of age. Therefore, it would be in fitness of the thing, if appeal is allowed partly reversing the acquittal of the Accused persons for offence u/s 302 and instead, recording the conviction for offence u/s 304 Part-II, as stated. However, the benefit of Probation of Offenders Act is granted since years qua Accused Nos. 3 and 4, therefore, not disturbed looking to the overall circumstance, lapse of time and the fact that they have settled in their married life.

Therefore, the impugned judgment and order passed by the learned Additional Sessions Judge, Kutch at Bhuj in Sessions Case No. 35 of 1986 recording the acquittal of the accused persons u/s 302 of IPC is hereby quashed and set aside and instead the conviction is recorded for offence u/s 304 Part-II of IPC for Accused No. 2, and Accused Nos. 3 and 4 for offence u/s 304 Part-II read with Section 114 of IPC. However, as stated above, the benefit granted to Accused Nos. 3 and 4 under the Probation of Offenders Act has not been disturbed. However, the Accused No. 2 is ordered to undergo RI for 7 years and fine of Rs. 2000/-, in default further period of RI for 3 months. The sentence for offence u/s 498A, 324 and 304 Part-II shall be undergone concurrently and it goes without saying that the sentence undergone by Accused No. 2 shall be given set off. Bail bond of Accused No. 2 shall stand cancelled. The Accused No. 2-Chandba, who is present in the Court is ordered to be taken into custody. The Criminal Appeal No. 504 of 1987 accordingly stands allowed partly.

In view of the order passed in Criminal Appeal No. 504 of 1987, Criminal Appeal No. 505 of 1987 stands disposed of.