Oral Judgment:

K.S. Jhaveri, J.

1. Present appeal is preferred by the original accused against the judgement and order of conviction and sentence dated 15.01.2004 passed by the Additional Sessions Judge, Fast Track Court No. 3, Gondal in Sessions Case No. 89 of 1994 for the offences punishable under sections 302 of Indian Penal Code. The original accused was ordered to undergo rigorous imprisonment for life & was ordered to pay fine of Rs. 2,000/- in default to undergo simple imprisonment for six months for offence under section 302 of Indian Penal Code.

2. The case of the prosecution is based upon a complaint given by the complainant father of deceased Jayaben wherein it is stated that on 17.12.1993, the present appellant poured kerosene on Jayaben and set her ablaze with the help of a matchstick. It is the case of the prosecution that the appellant used to frequently quarrel with the deceased. It is the case of the prosecution that the deceased was meted out with physical and mental torture by the appellant. Pursuant to the alleged incident, the deceased was taken to hospital for treatment.

2.1 Thereafter, panchnama of the scene of offence was done and the dying declaration of deceased was recorded.

However, after around five days of incident, the deceased succumbed to her burn injuries. Post mortem was carried out. After completing the inquest panchnama, the offence was registered against the accused. He was arrested and after necessary investigation, chargesheet was submitted against the accused. Ultimately, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court.

2.2 The trial was initiated against the accused and during the course of trial the prosecution examined the following witnesses as oral evidences:

(i) P.W. 1 Jikubhai Makwana Ex. 07

(ii) P.W. 2 Monghiben Makwana Ex. 09

(iii) P.W. 3 Jalunen Gandubhai Ex. 10

(iv) P.W. 4 Dhirubhai Khant Ex. 27

(v) P.W. 5 Gokalbhai Makwana Ex. 31

(vi) P. W. 6 Bavanjibhai Makwana Ex. 32

(vii) P.W. 7 Parsottam Khant Ex. 33

(viii) P.W. 8 Kalubhai Khant Ex. 34

(ix) P.W. 9 Bapabhai Gujarati Ex. 35

(x) P.W. 10 Bharatbhai Bheda Ex. 36

(xi) P.W. 11 Chanabhai Khant Ex. 37

(xii) P.W. 12 Bhupatsinh Solanki Ex. 38

(xiii) P.W. 13 Danubhai Garchar Ex. 39

(xiv) P.W. 14 Bhagwatiprasad Nimavat Ex. 61

(xv) P.W. 15 Indravadan Joshi Ex. 63

(xvi) P.W. 16 Bhalchandra Joshi Ex. 68

2.3 The prosecution also exhibited the following documents as documentary evidences:

(i) Yadi to PSO, Jetpur Ex. 11

(ii) Station diary entry No. 23/93 Ex. 12

(iii) Station diary entry No. 18/93 Ex. 13

(iv) Yadi to Head Constable Ex. 14

(v) Panchnama of local place Ex. 15

(vi) Yadi Ex. 16

(vii) Yadi regarding death of deceased Ex. 17

(viii) Yadi for conducting post mortem Ex. 18

(ix) Inquest panchnama Ex. 19

(x) Dispatch note Ex. 20

(xi) Post mortem report Ex. 21

(xii) Injury certificate of deceased Ex. 22

(xiii) Treatment certificate of accused Ex. 23

(xiv) Receipt by FSL, Junagadh Ex. 24

(xv) FSL report Ex. 25

(xvi) Death form Ex. 26

(xvii) Complaint Ex. 39

(xviii) Dying declaration Ex. 78

(xix) Statement of deceased recorded by H.C Ex. 79

(xx) Radio message Ex. 80

(xxi) Yadi for conducting post mortem Ex. 62

(xxii) Case papers of accused Ex. 64

(xxiii) Case papers of deceased Ex. 69

2.4 At the end of trial, after recording the statement of the accused and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellant of the charges leveled against him by judgement and order dated 15.01.2004. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellant has preferred the present appeal.

3. Mr. J.M. Buddhbhatti, learned advocate appearing for the appellant has contended that the prosecution has failed to prove the case against the accused beyond reasonable doubt. He submitted that there is no eye witness to the present incident and that the case is based on circumstantial evidence. He submitted that in fact the appellant is wrongly roped in the present offence and that he himself had sustained burn injuries while trying to save the deceased.

3.1 Mr. Buddhbhatti has drawn the attention of this Court to the history given by the deceased herself to the doctor who treated her, the dying declaration recorded by the Executive Magistrate and the statement the police and strongly contended that considering the said pieces of evidence it cannot in any manner be said that the death of the deceased was a homicidal one. He contended that the fact that the deceased died an accidental death is clear from her own version and therefore the trial court has committed an error in convicting the appellant accused.

3.2 Mr. Buddhbhatti further contended that in fact the complaint lodged by the complainant is after the death of the victim and not after the alleged incident. He submitted that in fact if the accused had been the perpetrator of the alleged offence the deceased would have obviously named him in the statements recorded by her from time to time. He submitted that in absence of any eye witness to the incident and in absence of any statement from the deceased that the appellant is the accused in the present offence, the trial court has wrongly convicted the present appellant and he deserves to be granted atleast benefit of doubt.

4. Ms. CM Shah, learned APP has strongly supported the impugned judgment and order passed by the trial court and submitted that the same does not call for any interference by this Court. She has drawn the attention of this Court to the variations in the statements recorded by the deceased and submitted that the same cannot be completely relied upon. She has drawn the attention of this court to the panchnama of scene of offence and submitted that the say of the victim that she sustained accidental burn injuries due to stove cannot be believed as no stove was found from the scene of offence. She submitted that in fact nothing was found from the scene of offence as per the panchnama which supports the deceaseds say that there was a fire place.

5. We have gone through the judgement and order passed by the trial court. We have also perused the oral as well as documentary evidence perused by the trial court and also considered the submissions made by learned Advocates for both the sides.

6. As per the prosecution case, the deceased was allegedly set on fire by the appellant-accused and she was immediately rushed to Jetpur hospital and thereafter to Junagadh hospital where she was treated before succumbing to the burns. During the course of the treatment, there are statements made by the deceased while giving history before the doctor who treated her and dying declaration before the Executive Magistrate and also the statement given before the police authorities.

7. In the history recorded before the doctor at Government hospital, Jetpur the deceased has mentioned that she had sustained accidental burns due to explosion of stove. Thereafter, in the history recorded before the doctor at Junagadh hospital also, the deceased has mentioned that she sustained accidental burns while she was sitting near a stove.

7.1 In the dying declaration recorded before the Executive Magistrate on 18.12.1993 at around 0045 hours, the deceased has stated that on the day of incidence, while she and her husband were sitting aside a fire place, and as they did not have any cow-dung to burn, the deceased while searching for a lamp got accidental burn injuries when she went near a stove which was lit. She has not named any person in the dying declaration.

8. In the case of Shudhakar vs. State of Madhya Pradesh reported in (2012) 7 SCC 569 [LQ/SC/2012/601] , the Apex Court has held that a dying declaration is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth and that normally in such situations, courts attach intrinsic value of truthfulness to such statement. It is also held that once such statement has been made voluntarily, it is reliable and is not an attempt by deceased to cover up truth or falsely implicate a person, then courts can safely rely on such dying declaration and it can form the basis of conviction, more so where version given by other prosecution evidence, there is no reason for courts to doubt truthfulness of such dying declaration.

8.1 In the case of Krishan vs. State of Haryana reported in (2013) 3 SCC 280 [LQ/SC/2012/1132] , the Apex Court has held that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. Where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. But where the dying declaration itself is attended by suspicious circumstances, has not been recorded in accordance with law and settled procedures and practices, then, it may be necessary for the court to look for corroboration of the same.

8.2 It shall not be out of place to mention that the courts have to be on guard to see that the dying declaration is not the result of either tutoring or prompting or a product of imagination and that due care and caution must be exercised in considering weight to be given to the dying declaration.

9. It shall be relevant to go through the evidence of the doctor who conducted post mortem and treated the victim so as to enable this court to ascertain the nature of injuries.

P.W. 14, Dr. Bhagwati Prasad, Ex. 61 is the doctor who performed the post mortem of the body of the deceased. P.W. 14 has opined that in the present case there were burns on the face, head, neck, chest, abdomen and back, hands and legs. He has opined that the cause of death was shock to extensive burns over the entire body. He has stated that the burn injuries sustained by the deceased was sufficient in ordinary course of nature to cause death of a person. This witness in his cross examination has agreed that there were no other injuries on the body of the deceased other than the burn injuries which would indicate that there was any physical assault upon the deceased prior to the alleged incident.

9.1 Ex. 21 is the post mortem report of the body of the deceased which states the cause of death to be shock due to extensive burns all over body. In column 17 of the post mortem report, the injuries on the external part of the body is mentioned as under:

17. Ist & IInd degree burns as follows over body:

(1) Face & scalp

(2) Nape of neck

(3) Chest and Abdomen

(4) Upper & lower extremities

9.2 Dr. Indravadan Joshi, P.W. 15 is the medical officer who treated the victim after she was brought to Government Hospital, Jetpur. He has deposed that the victim had stated before him that she sustained burns when the stove exploded.

Dr. Bhalchandra Joshi, P.W. 16 is the medical officer who treated the victim at Junagadh Civil Hospital. This witness has deposed that the victim had stated that she sustained burns as a result of accidental fire which was caught as she was sitting near a stove.

10. P.W. 8, Kalubhai Khant is the autorickshaw driver in whose autorickshaw the deceased was taken to Jetpur hospital. This witness vide his deposition at Ex. 34 has deposed that he was informed by one Bavabhai that the deceased had sustained burns as she accidentally received burn injuries when she was sitting with her husband near a stove.

11. P.W. 5, Gokalbhai Makwana is the brother of deceased Jayaben. This witness has deposed that when he reached Junagadh hospital he inquired from the deceased as to what did she do and the deceased replied that she did not do anything. This witness has further stated that the deceased pointing towards the accused told this witness to ask the accused about the incident. Nothing much incriminating has come forth from the evidence of this witness.

12. It is pertinent to note that the accused had also sustained burn injuries on his hands and face. The injuries sustained by the accused are clear from the case papers of Junagadh Civil hospital where the accused was also admitted for treatment. In view of the dying declarations given by the deceased and the history recorded before the doctors at both the hospitals where she has not named the accused even in the remotest way, we do not find any reason for convicting the accused in the present offence. The injuries sustained by the accused on the face go to show that he may have tried to save the deceased. However, the prosecution has not been able to prove that the accused has committed the alleged offence.

13. Moreover, there are no apparent injuries on the body of the deceased as can be seen from the panchnama and the medical evidence which can show any type of force applied upon the deceased while trying to set her on fire. In normal circumstances, in cases of homicide by pouring kerosene and setting fire, there ought to be some injuries or bruises which show that the victim has tried to resist the commission of the offence or that the guilty has tried to forcibly commit the offence. There is no eye witness to the case and the trial court has convicted the accused on basis of circumstantial evidence.

14. In that view of the matter, considering the glaring discrepancies in the prosecution case, this Court is of the view that the prosecution has not been able to prove its point beyond reasonable doubt. On the other hand the accused has successfully tried to prove its case on the touchstone of preponderance of probabilities and created a doubt in the mind of court that the aspect of suicide cannot be ruled out.

15. We are of the opinion that since all the three dying declarations i.e. case history, statement before the police and dying declaration before Executive Magistrate do not name the accused in the alleged offence, it shall not be fit to convict the accused merely on the basis of suspicion. In fact the trial court has tried to convict the present appellant only on the basis of suspicion based on circumstantial evidence.

15.1 In the case of Sri. Sujit Biswas vs. State of Assam, the Apex Court has held as under :

Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be proved, and something that `will be proved. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be and `must be is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be true and `must be true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be true and `must be true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.

15.2 In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 [LQ/SC/1984/171] , the Apex Court held as under: The facts so established should be consistent only with the hypothesis of the guilt of the accused. There should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

...Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence.

16. Thus, in view of the above, the Court must consider a case of circumstantial evidence in light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. Inferences are drawn from established facts, as the circumstances lead to particular inferences. The Court must draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion, that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused. Therefore, we are of the opinion that considering the fact that the chain of circumstances in the present case having not been complete, the present appellant deserves benefit of doubt.

17. Accordingly, Appeal is allowed. The order of conviction and sentence dated 15.01.2004 arising from the Sessions Case No. 89 of 1994 passed by the Additional Sessions Judge, Fast Track Court No. 3, Gondal is quashed and set aside. The appellant accused is acquitted of the charges leveled against him under Section 302 of Indian Penal Code giving benefit of doubt. The fine imposed upon the appellant vide judgement and order dated 15.01.2004 by the trial court, if paid, shall be refunded to him. R&P, if lying with this Court, to be sent back forthwith.