K.J. VAIDYA

(1) ese two appeals by the State of Gujarat against the respondent - Hasmukh @ Bhikha Gova Harijan, first one against the order of acquittal under Sec. 302 of the I. P. Code, and the second one for an enhancement of sentence against the inadequate order of sentence under Sec. 304-Part II of the I. P. Code, arise out of the very same judgment and order of conviction and sentence dated 20-12-1990 rendered in Sessions Case No. 55 of 1989, passed by the learned Additional Sessions Judge, Jamnagar, wherein on the respondent coming to be tried for the alleged offence punishable under Sec. 302 of the I. P. Code, was ultimately convicted for the offence punishable under Sec. 304 Part-II and sentenced to undergo 3 years R. I.

(2) Briefly, it is the prosecution case that the incident in question wherein Bhikha Shakra was stabbed to death by accused Hasmukh @ Bhikha Gova, took place on 26-11-1989 at 19-30 hours in Harijanvas, at village Vanavad. The prosecution, in order to bring home the charge against the accused, has mainly relied upon firstly one eye-witness, viz. PW 4 Nathu Bijal, and secondly, the seven oral dying declarations made before (i) PW 6 Ramji Sajan, (ii) PW 7 Madha Natha, (iii) PW 8 Devshi Jetha, and (iv) PW 9 Devji Mangal, (v) PW 10 Haja Anand, (vi) PW 11 Jetha Anand, and (vii) PW 12 Sakra Deva. According to eye-witness PW 4, the incident in question took place in the compound of his house where the accused after stabbing Bhikha on his back ran away. Injured thereafter walked home alone which was nearby and on way stated to PWs 6, 7, 8, 9, 10, 11 and at home to PW 12, his father, that Bhikha gave him the knife blow and has run away. Thereafter, the injured, first of all was taken to PW 2 Dr. J. J. Pandya, Medical Officer at Jamjodhpur Primary Health Centre. According to this Medical Officer, since the condition of the injured was quite serious the persons attending upon him were advised to take him at once to Irwin Hospital at Jamnagar. Thereafter, on the injured being taken to Irwin Hospital, Jamnagar, P.W. 3 Dr. A. H. Vyas examined him. According to this doctor, when injured was brought, he was quite conscious, and on making the usual inquiry about the history of assault, it was stated before him that he was attacked with knife. It further appears from the record that at Irwin Hospital, P.W. 16 Head Constable Babubha Shivubha Jadeja, recorded the complaint Ex. 44 of injured Bhikha at 23-00 hours which ultimately came to be registered at Bhanvad Police Station on next day at 7-55 hours, which stands projected before us also as dying declaration. Injured Bhikha ultimately succumbed to injuries at 4-00 A.M. on 27- 11-1989. On the basis of these allegations, after the investigation was over the respondent was charge-sheeted for the alleged offence under Sec. 302 I. P. Code to stand trial before the Sessions Court at Jamnagar, where he pleaded not gulity and claimed to be tried.

(3) The trial Court, after duly appreciating the prosecution evidence on the record, for the reasons stated in the impugned judgment, convicted and sentenced the respondent-accused for the offence punishable under Sec. 304 Part-II of the I. P. Code as stated above in para 1 of this judgment, giving rise to the present two appeals by the State of Gujarat. It appears that the respondent has not challenged the impugned judgment and order of conviction and sentence passed against him ..

(4) Mr. M. A. Bukhari, the learned A.P.P. while challenging the order of acquittal vehemently submitted that either the order of conviction and sentence need to be altered that from one under Sec. 304 Part-II to Sec. 302 I. P. Code and in case the same was ultimately found to be not possible, then in that case, the sentence under Sec. 304 Part-II be suitably enhanced. Making good this submission, the learned A.P.P. has carefully taken us through the evidence of all the prosecution witnesses and further contended that the trial Court has committed an obvious and patent error in not recording the order of conviction and sentence under Sec. 302 I. P. Code. According to the learned A.P.P. merely because there was one blow given to the deceased, that by itself was hardly a ground for taking a lighter view of the matter by convicting the accused under Sec. 304 Part II I. P. Code, more particularly when there is indeed nothing on the record to show that there was a sudden quarrel and in the heat of moment, not taking any undue advantage and/or acting in cruel manner, the accused picked up the knife just lying round-about and gave the blow with it or gave the blow by way of right of selfdefence and exceeded the said right. In this view of the matter according to the learned A.P.P., the accused deserves to be convicted under Sec. 302 I.P. Code. In the alternative, the learned A.P.P. submitted that in case the Court was not inclined to allow the acquittal appeal, then having regard to the facts and circumstances of the case, the sentence of 3 years being unduly lenient and grossly inadequate, the same deserves to be suitably enhanced.

(5) We, at the very outset, would like to say that on going through the evidence, there is indeed nothing in it, on the basis of which with any reasonable certainty, the accused person could ever be connected with the crime alleged against him, and accordingly the impugned order of conviction and sentence could be sustained further.

(6) To start with the evidence of the solitary eye-witness, P.W. 4, Nathu Bijal, it may be stated that it does not inspire any confidence at all. Though this witness claims knowing the accused right from the birth, by his name Bhikha, still surprisingly enough, he admits that he did not know that he was also known as Hasmukh .. Further admittedly, the incident in question took place at about 7-00 PM in the month of November, when the darkness could be safely presumed. This witness in terms has also admitted that the accused came running, and without uttering a word gave a knife blow on the back of Shakra and ran away. He also admits not to have seen the face of the accused .Not only this, but though injured Bhikha was residing just 8 houses away from his house, he neither helped the injured nor informed his family members about such a serious incident. Looking to such gross unnatural conduct, it would indeed be quite dangerous to accept and rely upon his evidence. In this view of the matter, the learned Judge has committed a grave error in accepting and relying upon the evidence of P.W. 4.

(7) Written and Oral Dying Declarations :- This now takes us to the dying declarations. In this regard, the learned trial Judge was indeed quite right when he observed the settled principle that the accused can certainly be convicted and sentenced for the offences alleged against him entirely on dying declaration, and that there is indeed no legal requirement that unless the same is corroborated by other independent evidence, he cannot be convicted. But then, here to act upon such dying declarations, the Court is first of all required to satisfy its conscience whether the same is (i) voluntary, (ii) truthful, (iii) genuine and (iv) not surrounded by any doubtful circumstances.

(8) Now, in the instant case before us, there are in all 7 dying declaraions out of which four witnesses, viz. P.Ws. 6, 7, 8 and 9 before whom it is alleged that the deceased Bhikha made oral dying declarations have been declared hostile, and accordingly the same are indeed of no assistance whatsoever to the prosecution. So far as dying declarations before P.W. 10 Haja Anand is concerned, though he is not declared hostile, the trial Court itself has quite rightly found it not dependable enough and rejected the same. Under the circumstances, now the entire prosecution case rests upon the written dying declaration - Complaint Exh. 44, and two oral dying declarations, one before P.W. 11 and the other before P.W. 12.

(9) Written Dying Declaration :- It is quite true that complaint Exh. 44 given by deceased Bhikha Shakra in clear and unmistakable terms refer to the respondent as the person having given a blow on his back with knife which in a way can be treated as written dying declaration and in fact it is so. But then, we have indeed our own doubts as to whether this was a genuine complaint, more particularly when the father of the deceased, viz., P.W. 12 Shakra Deva, who though in unmistakble terms has deposed before the Court that on police inquiring as to whether he wanted to file a complaint, he answered in the affirmative and accordingly the said complaint was written down, and yet for the reasons best known to the prosecuting agency quite surprisingly the same is not forthcoming on the record .As against this, P.W. 16 in his turn has contradicted P.W. 12 by flatly asserting that he had not given any such complaint to him .Not only that, but according to P.W. 12, when P.W. 16, Head Constable recorded the statement/complaint of Bhikha Shakra (deceased), though the doctor was present at the relevant point of time, yet on reading the entire evidence of P.W. 3, it is indeed very clear that he was not present when P.W. 16 recorded the complaint Ex. 44. If indeed P.W. 16 recorded the complaint of deceased Bhikha Shakra as alleged in the presence of any other doctors, he has not named those doctors. Not only that, but no such other doctor if at all present has been examined at the trial to support P.W. 16. The matter does not rest here. Even the complaint Exh. 44 of the injured allegedly recorded by P.W. 16 does not bear even the bare signature of the doctor, apart from the endorsement of doctor whether the injured was in a fit state of mind to give the complaint or not .The prosecution while examining P.W. 3 has produced on record the case papers (Ex. 15) of the injured Bhikha Shakra at Irwin Hospital, Jamnagar. This case papers reveal that the history of the incident was recorded by the Resident Medical Officer as per the information supplied by the father of the patient (deceased). Under the circumstances, this endorsement in case papers creates further doubt whether the injured Bhikha at the relevant time was in a fit state of mind to give his complaint Ex. 44 to P.W. 16 as asserted by the said witness before the trial Court.

(10) It is further interesting to note that P.W. 11 Jetha Anand and P.W. 12 Sakra Deva, in unmistakable terms have stated on oath before the Court that when the injured was taken to Irwin Hospital they had named Bhikha Gova as the person having given blow to the deceased with knife to the doctor present there, and still to our greatest surprise, P.W. 2 Dr. J. J. Pandya in his cross-examination though admitted that while taking down the history of assault from injured whatever is said by him would be taken down but at the same time, ordinarily, even if the name of the assailant is given, the same is not recorded in the history .This answer of the Doctor is indeed quite strange, perplexing and shocking for the simple reason that if while giving history of the assault, the injured also gives out the name of the assailant/s, and the manner in which the incident took place, then in that case, it is indeed the bounden duty of the Doctor to record the same as it is and he cant be permitted to turn deaf ear to. This is his plain and simple inevitable bounden professional duty. To act to the contrary demonstrates not only the lack of professional awareness, ethics and duty on the part of the concerned Doctor/Medical Officer but also lack of sense of duty as a responsible citizen. In criminal trial, the doctors play a pivotal role, and more particularly in bride burning/assault cases and for that purpose in fact any other serious cases, where these days it is the demand of the society and call of duty upon the concerned Doctors/Medical Officers to see that they definitely put questions to the burnt or injured person brought before them, and record the history, including the name of the assailant, whosoever he is. Doctors/ Medical Officers should specially note that in criminal trial and motor accident cases they are considered to be easily the best and only independent witnesses assisting the cause of justice, firstly, for their expertise knowledge; secondly for their objective assistance and thirdly for their outright independence having no personal axe to grind. We may, of course, with great reluctance hasten to add that where we find in number of cases the way in which P.M. notes, medical certificates are tampered with, the independence of doctor has become quite questionable in some given cases because of certain black-sheep (as in other fields also) who are definitely slur on otherwise fair and glorious name of medical profession. Anyway, when the injured person is taken to the Doctor/Medical Officer incidentally enough he is not acting there merely as a Doctor/Medical Officer, but he in fact in sequence of events also become quite an important link prosecution witness being the first and earliest in point of time coming in contact with the injured giving out name of accused. This is possibly, precisely the point of time where injured would disclose true prosecution case by naming the real assailant/s (if known) over and above other history of assault, which can forestall the subsequent concoction by the Investigating Agency in a given case. As a matter of fact, in a given case, when the injured is taken to the Doctor/ Medical Officer, is ultimately found to be in extremely serious condition, he may not be in a position either to inform the police and thereby the Executive Magistrate to record the dying declaration, and then in that case to help save situation and thereby the ultimate cause of justice, it is indeed the first and foremost sacred duty of such Doctor/Medical Officer to take down whatever voluntarily falls down from the lips of the injured forming it part of case papers and if the injured/burnt person doesnt volunteer of his/her own in naming the assailant, then in that case, it is equally the further duty of the concerned Doctor/Medical Officer to inquire and find out from him as to who was the assailant (if possible) because at that stage what ought we not know that but for the last statement of injured recorded by Doctor/Medical Officer he may ultimately succumb to the injury there would be nothing, no other piece of evidence to trace and connect the accused with the crime alleged against him .. Under such demanding and not to be taken chance with circumstances, if the Doctor/Medical Officer attending upon the injured/burnt remains just wooden, passive, placid, unconcerned, mechanical he would be simply inadvertently playing in the hands helping the accused to go unpunished .No doubt, and indeed it is quite true that the first and foremost concern of any Doctor/Medical Officer is to give firstaid medical treatment to the injured, and that he is certainly not Police Officer to record the complaint. But at the same time, in all medico-legal cases, the Doctor/ Medical Officer attending upon and treating injured when has an opportunity to know the material facts, more particularly the name/s of the assailant/s, he would not be justified in not recording the same on the ground that his first and last job was only to give medical treatment only to the injured and that he had no concern or business whatsoever to do anything further by recording the names of assailant. When any person sees or hears about the prosecution case civic sense demands of him to be a witness of the said facts first also before the police by giving statement and thereafter the Court. Doctor/Medical Officers are as much a part of the society, and are citizens and accordingly, cannot be exception to this. To help the cause of justice is the duty of every citizen, who happens to be a witness in chain of events of the prosecution case. In fact, when law enjoins upon every Doctor/Medical Officer without any exception to inform the police in every medico-legal case, this very duty further enjoins upon the concerned Doctor/Medical Officer to provide himself as the best material-link connecting the accused with injury, ultimately crime and thereby helping out the real cause of justice. Accordingly, to say the least, not to record name of accused, though given, while taking down the history of assault from the injured, is indeed quite contrary to the professional ethics. In this way, it is only upon this statement of the injured/deceased before the Doctor/Medical Officer that justice could be either brought home or driven off at the very threshold. If this rightful duty is not performed by the Doctor/Medical Officer, and by the time police or Executive Magistrate reaches the hospital, an important clue connecting the accused with the crime could be lost, if injured unexpectedly succumbs to the injury in the meantime, and thereby, there are all the possibility of the accused going unpunished, deceased and society denied justice, if there is no other evidence available. In this view of the matter, not to record the history, including the name of the assailant if given by the injured, by the Doctor/Medical Officer, is indeed a very serious lapse on his part which cannot be countenanced lightly. At this stage it needs to be clarified that merely because the concerned Doctor/Medical Officer if according to his understanding rightly or wrongly fails to note down the name of assailant, while taking history of assault from the assailants, that circumstance standing by itself will not be necessarily and automatically fatal .Not only that but in a given case of bride killing, where injured is unconscious or unable to speak, history given by the husband or his relative does not assume any mechanical importance because it was the earliest in point of time before Doctor/Medical Officer who is considered to be independent witness for the obvious reason that true cause of death may not come out from these persons being interested in suppressing it. In fact, in every case when the police starts with the investigation, it is the duty of the I.O. to contact first of all the concerned Doctor/Medical Officer who gave treatment to the injured, and inquire from him firstly, who brought the injured/burnt to hospital; secondly, whether injured/burnt was conscious and in a fit state of mind, able to speak; and thirdly whether injured/burnt named (if known) or given description (if unknown) of accused person/s who assaulted him. The reason is, if the injured had disclosed the name of the assailant, to the Doctor/Medical Officer then that hearing part of evidence by Doctor/Medical Officer is an evidence of the ordinary witness where he at that stage will not figure as an expert witness. It is only regarding the injury part that his evidence being of an expert is straight-way admissible under Sec. 45 of the Evidence Act. But so far as the evidence of the doctor regarding disclosure of name of assailant is concerned, that stands on a different footing as there the doctor is merely an ordinary witness and as such witness, it is the duty of the I.O. to record his statement under Secs. 161 and 162 of Criminal Procedure Code, 1973. This is further with a view to protect the interest both of the prosecution and accused and ultimately of justice. This is with a view to see that the same doctor in a given case with all human failings ultimately, for whatever reason may not become plyable weather-cock, and give a different version setting at naught the fate to the prosecution and ultimately justice. Suppose in a given case, the injured had given the name of the assailant to the Doctor/Medical Officer and the said Doctor/Medical Officer for whatever reason did not give it before the Court while deposing, then in that case he can be certainly contradicted by prosecution with his previous police statement if it is recorded; and similarly in another type of given case, where the injured had not at all given the name of the assailant and yet Medical Officer somehow names assailant before the Court, then here also he can be contradicted by defence-Advocate, by calling attention of the Medical Officer to his previous statement before the police. Accordingly, firstly it is the duty of the Doctor/Medical Officer to record the history as it is, not only with regard to the injury alone and/or weapon with which it was caused, but also with regard to the name and/or description to the person who caused it. Secondly, it is the duty of the I.O. in turn when he comes to know that the injured was taken to the hospital to know from (i) the concerned Doctor/Medical Officer who gavethe treatment at first as to whether the injured had disclosed the name of the assailant and thereafter (ii) the injured who is the best person to give name of the assailant and if the assailant was unknown the identity description on the basis of which he can be traced out. The I.O. should also go to the other attendants who brought injured to the hospital and also to inquire from the Assistants of the concerned Medical Officer, that is to say compounder, nurse, peon, etc., who were present at the hospital at the time of treatment and know what was the version of the injured at the earliest in point of time if before Medical Officer could attend to injured he succumbs to the injury. Further still for such details, the I.O. should not wait for the medical certificate to come subsequently because we have come across several such cases, wherein the medical certificates are given leisurely after lapse of considerable time and during this time the entire complexion of the case conveniently changes suiting to the exigencies of interested parties by altering nature, kind and degree of injuries for very many reasons too well-known to be stated here resulting into gross miscarriage of justice, in criminal and motor accident claim cases which can never be countenanced lightly by any Court. It is the right of the police to get medical certificate at the earliest and it is equally the corresponding duty of Medical Officers to give medical certificate/post-mortem notes immediately to the police. The Investigating Agency should insist for immediate collection and should collect it accordingly, with a view to see that interested parties do not try to influence and tamper with medical record, or to say the least, to avoid allegation that the concerned Doctor/Medical Officer has conveniently changed opinion, certificate, etc., which not always but at the same time, many a time may found to be quite true.

(11) Now, reading the evidence of P.W. 11 and P.W. 12 on the one hand, and that of PW 3 Medical Officer on the other, quite a tricky situation has been created by the oral dying declarations where we feel quite unsafe to accept and rely upon them. The question is whether it is because and in fact P.Ws. 11 and 12 were not knowing the name of the accused at the time when they took injured to the hospital that they could not name the accused and that was the reason why it was not given and taken down in the case papers Ex. 15 or whether it is because as stated by PW 3, Medical Officer that it is not their practice to note down name of accused while taking history that the name of the accused was not reflected in the case papers .Ordinarily, we might have accepted the explanation of P.W. 3 and accordingly would have been tempted to accept oral dying declarations before P.Ws 11 and 12, more particularly when any injured would be asked and when so asked particularly by the father, he would surely reveal the incident naming accused if identified. But unfortunately the most dubious way in which the Investigating Agency has created eye-witness and oral dying declarations, out of which four have been declared hostile, we dont feel it safe to base conviction on oral dying declarations made before P.Ws. 11 and 12, which are also not free from doubt.

(12) In view of the aforesaid discussion, taking into consideration the overall prosecution evidence brought on the record, there being no dependable evidence on the basis of which we can say with certainty without any hesitation and manner of doubt whatsoever that the accused had committed the alleged offence. Neither the incident of solitary eye-witness PW 4, nor any of the dying declarations are found to be trustworthy to sustain the order of conviction and sentence. Apart this, there is indeed no other incriminatory circumstances on the basis of which the impugned order of conviction and sentence could be sustained, even otherwise. Under the circumstances, we have no alternative left with us, but to reverse the impugned judgment and order of conviction and sentence, and acquit the accused of the charge levelled against him.

(13) In the result, the present two appeals fail and are dismissed. Accordingly the impugned order of conviction and sentence is also quashed and set aside.

(14) The Registry is directed to forward a copy of this judgment to (1) the Director General of Police, Gujarat State, Ahmedabad, (2) the Secretary, Health and Family Welfare Department, Gandhinagar, with a request to incorporate relevant guidelines discussed above in the Gujarat Police Manual and in course of the medical jurisprudence respectively to help enlighten and impart efficient training to the Investigating Officers and Medical Officers by also issuing immediately necessary circular in the said regard. The Secretary, Health and Family Welfare Department, shall also see to it that the medico-legal aspect discussed above is taught to the medical students during the period on the subject of Medical Jurisprudence, and (3) the Secretary, Legal Department, Government of Gujarat, Gandhinagar to monitor the execution of above direction and report back the implementation to this Court, preferably on or before 31st March, 1996.