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Sec.173(8) – Sec.309 – Cr.P.C. and sec.32 (1) of Evidence Act- further investigation filed by wife pending charges -allowed but gained no mass – During trial again by son an application under sec. 309 on the same set of allegations – Trail court allowed – High court confirmed – Apex court held that an attempt proved futile as nothing is gathered in the evidence during trial – the alleged letter has no direct nexus with the alleged offence as per sec.32 (1) of Evidence Act for sake hearsay evidence also – Apex court set aside the order of trial and High court = BABUBHAI BHIMABHAI BOKHIRIA & ANR. ….. APPELLANTS VERSUS STATE OF GUJARAT & ORS. …. RESPONDENTS= 2014 (Apr.Part) http://judis.nic.in/supremecourt/filename=41376

Sec.173(8) – Sec.309 – Cr.P.C. and sec.32 (1) of Evidence Act– further investigation filed by wife pending charges -allowed but gained no mass – During trial again by son an application under sec. 309 on the same set of allegations – Trail court allowed – High court confirmed – Apex court held that  an attempt proved futile as nothing is gathered in the evidence during trial – the alleged letter has no direct nexus with the alleged offence as per sec.32 (1) of Evidence Act for sake hearsay evidence also – Apex court set aside the order of trial and High court =

 

When

    the trial was so pending, the wife of the deceased filed an application

    for further investigation under Section 173(8) of the Code of  Criminal

    Procedure  (hereinafter  referred   to   as   ‘the   Code’),   alleging

    petitioner’s complicity in the crime,  inter  alia,  stating  that  the

    petitioner was a business rival of the deceased whereas one of the main

    accused is his business partner with whom  he  conspired  to  kill  the

    deceased.  It was alleged that petitioner was a Minister  earlier  from

    the party which was in power in the State and therefore, he was let off

    during investigation.  It was also pointed out that  a  letter  written

    almost a year ago by the deceased was recovered from his purse in which

    it was stated that in the event of his death, the petitioner  shall  be

    held responsible as he intended to kill him. =

 Notwithstanding  the

    aforesaid affidavit of the Investigating Officer,  the  Sessions  Judge

    directed for further investigation.  

In the light of the aforesaid, the

    investigating agency submitted further report stating therein that  the

    call records of the period  immediately  preceding  the  death  of  the

    deceased do not show any nexus between him and the petitioner  and  the

    deceased did not have any threat from the petitioner.  In this way, the

    police did not find the complicity of the petitioner in the crime.=

 

an application was filed by the son of  the

    deceased praying  for  arraigning  the  petitioner  as  an  accused  in

    exercise of power under Section 319 of the Code.  During the course of trial.

Said application  was

    allowed by the learned Sessions Judge on its finding that  prima  facie

    strong evidence exists to summon the petitioner as the letter recovered

    from the deceased incriminated him.  It  was  also  observed  that  the

    veracity of the letter recovered from the deceased was  established  by

    two witnesses who confirmed that the letter was in the  handwriting  of

    the deceased.

 

           Aggrieved by  the  aforesaid  order,  the  petitioner  preferred

    Special Criminal Application No. 638 of 2008 before the High  Court  of

    Gujarat.  The High  Court  by  its  order  dated  11th  December,  2008

    dismissed the said application =

About alleged letter credence 

   This Court in the case of Sharad Birdhichand Sarda v.  State  of

    Maharashtra, 1984 (4) SCC 116,  after  review  of  a  large  number  of

    decisions of the Privy Council, various High  Courts  and  the  Supreme

    Court,  endorsed  the  view  taken  by  the  Privy  Council  in  Pakala

    Narayanswami (supra) in the following words:

           “21. Thus, from a review of the authorities mentioned above  and

           the clear language of Section 32(1) of  the  Evidence  Act,  the

           following propositions emerge:

 

           (1) Section 32 is an exception to the rule of hearsay and  makes

           admissible the statement of a person who dies, whether the death

           is a homicide or a suicide, provided the  statement  relates  to

           the cause of death, or exhibits  circumstances  leading  to  the

           death. In this respect, as indicated above, the Indian  Evidence

           Act, in view of the peculiar conditions of our society  and  the

           diverse nature and character  of  our  people,  has  thought  it

           necessary to widen the sphere of Section 32 to avoid injustice.”

    All these decisions support the view which we  have  taken  that

    the note written by the deceased does not relate to the  cause  of  his

    death or to any of the circumstances of the transaction which  resulted

    in his death and therefore, is inadmissible in law.

 Now we revert to the authority of this  Court  in  Rattan  Singh

    (supra) relied on by Dr. Singhvi.   In  the  said  case,  the  deceased

    immediately before she was fired at, spoke out  that  the  accused  was

    standing nearby with a gun.  In a split second  the  sound  of  firearm

    shot was heard and in a trice  her  life  snuffed  off.   In  the  said

    background, this Court held that the words spoken by the deceased  have

    connection with the circumstance of  transaction  which  resulted  into

    death.  In the case in hand, excepting apprehension, there  is  nothing

    in the note.  No circumstance of any transaction resulting in the death

    of the deceased is found in the note.  Hence, this decision in  no  way

    supports the contention of Dr. Singhvi.

 

          The other  evidence  sought  to  be  relied  for  summoning  the

    appellant is the alleged conversation between  the  appellant  and  the

    accused on and immediately after  the  day  of  the  occurrence.   But,

    nothing has come during the course of trial regarding  the  content  of

    the  conversation  and  from  call  records  alone,   the   appellant’s

    complicity in the crime does not  surface at all.

 

        From what we have observed above, it is evident that no evidence

    has at all come during  the  trial  which  shows  even  a  prima  facie

    complicity of the appellant in the crime.  In that view of the  matter,

    the order passed  by  the  trial  court  summoning  the  appellant,  as

    affirmed by the High Court, cannot be allowed to stand.

 

 

2014 (Apr.Part) http://judis.nic.in/supremecourt/filename=41376

CHANDRAMAULI KR. PRASAD, PINAKI CHANDRA GHOSE

 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.735 OF 2014
(@SPECIAL LEAVE PETITION (CRL.) No.9184 of 2008)

 
BABUBHAI BHIMABHAI BOKHIRIA
& ANR. ….. APPELLANTS
VERSUS

STATE OF GUJARAT & ORS. …. RESPONDENTS

 
J U D G M E N T

 

Chandramauli Kr. Prasad

Before we proceed to consider the case, we must remind ourselves
the maxim “judex damnatur cum nocens absolvitur” which means that a
Judge is condemned when guilty person escapes punishment. But, at the
same time, we cannot forget that credibility of the justice delivery
system comes under severe strain when a person is put on trial only for
acquittal.

By Order dated 8th December, 2011, Veja Prabhat Bhutia was
added as petitioner no. 2. He was an accused in the case and his
grievance was that due to pendency of the present petition filed by
petitioner Babubhai Bhimabhai Bokhiria, his trial has been stayed and
he is unnecessarily rotting in jail. This judgment shall, therefore,
will have no bearing on him and the expression “petitioner/appellant”
in this judgment would mean petitioner no.1/appellant no.1 Babubhai
Bhimabhai Bokhiria.

Shorn of unnecessary details, facts giving rise to the present
petition are that one Mulubhai Gigabhai Modhvadiya was murdered on 16th
of November, 2005 and for that a case was registered at Kalambaug
Police Station, Porbandar, under Section 302, 201, 34, 120B, 465, 468
and 471 of the Indian Penal Code and Section 25 of the Arms Act.
Police after usual investigation submitted the charge-sheet and the
case was ultimately committed for trial to the Court of Session. When
the trial was so pending, the wife of the deceased filed an application
for further investigation under Section 173(8) of the Code of Criminal
Procedure (hereinafter referred to as ‘the Code’), alleging
petitioner’s complicity in the crime, inter alia, stating that the
petitioner was a business rival of the deceased whereas one of the main
accused is his business partner with whom he conspired to kill the
deceased. It was alleged that petitioner was a Minister earlier from
the party which was in power in the State and therefore, he was let off
during investigation. It was also pointed out that a letter written
almost a year ago by the deceased was recovered from his purse in which
it was stated that in the event of his death, the petitioner shall be
held responsible as he intended to kill him. In reply to the said
application, the Investigating Officer filed his affidavit stating
therein that during the course of investigation, nobody supported the
plea of the wife that the deceased was apprehending any threat from the
petitioner or for that matter, any other person. In another affidavit
filed by the Investigating Officer, a firm stand was taken that no
material had surfaced to show the complicity of the petitioner in the
offence. It was pointed out by the Investigating Officer that the
deceased filed an application for arms licence and in that application
also he did not disclose any threat or apprehension to his life from
any person, including the petitioner herein. Notwithstanding the
aforesaid affidavit of the Investigating Officer, the Sessions Judge
directed for further investigation. In the light of the aforesaid, the
investigating agency submitted further report stating therein that the
call records of the period immediately preceding the death of the
deceased do not show any nexus between him and the petitioner and the
deceased did not have any threat from the petitioner. In this way, the
police did not find the complicity of the petitioner in the crime.

During the course of trial of other accused, 134 witnesses were
examined and at that stage, an application was filed by the son of the
deceased praying for arraigning the petitioner as an accused in
exercise of power under Section 319 of the Code. Said application was
allowed by the learned Sessions Judge on its finding that prima facie
strong evidence exists to summon the petitioner as the letter recovered
from the deceased incriminated him. It was also observed that the
veracity of the letter recovered from the deceased was established by
two witnesses who confirmed that the letter was in the handwriting of
the deceased.

Aggrieved by the aforesaid order, the petitioner preferred
Special Criminal Application No. 638 of 2008 before the High Court of
Gujarat. The High Court by its order dated 11th December, 2008
dismissed the said application inter alia observing as follows:

“7. In view of the material placed before the Court, selected by
the parties, and in absence of comprehensive and panoramic view
of the entire evidence led before the Court in respect of the
heinous crime wherein Section 120-B of I.P.C. is clearly
alleged, it would be hazardous to record an opinion different
from the opinion formed by the Court conducting the case. It is
emphasized in the most recent judgment dated 07.11.2008 of the
Supreme Court in Hardeep Singh v. State of Punjab [Criminal
Appeal No. 1750-1751/2008], after reference to most of the
previous judgments on the issue and reiterating the ration in
Bholu Ram v. State of Punjab (2008) 9 SCC 140, that the primary
object underlying Section 319 is that the whole case against all
the accused should be tried and disposed of not only
expeditiously but also simultaneously. Justice and convenience
both require that cognizance against the newly added accused
should be taken in the same case and in the same manner as
against the original accused. In view of the principles laid
down by the Supreme Court as adumbrated hereinabove and in view
of the further guidelines called for by the recent referring
judgment, it would be improper to interfere with the impugned
order, particularly when even the State and the prosecution has
supported the application at Ex. 225 below which the impugned
order was made.”

 

 

 

It is in these circumstances, the petitioner has preferred this
special leave petition and assails the aforesaid order.

 

Leave granted.

 
Before we proceed to deal with the evidence against the
appellant and address whether in light of the evidence available, power
under Section 319 of the Code was validly exercised, it would be
expedient to understand the position of law in this regard. The issue
regarding the scope and extent of powers of the court to arraign any
person as an accused during the course of inquiry or trial in exercise of
power under Section 319 of the Code has been set at rest by a
Constitution Bench of this court in the case of Hardeep Singh v. State of
Punjab, 2014 (1) SCALE 241. On a review of the authorities, this Court
summarised the legal position in the following words:

“98. Power under Section 319 Cr.P.C. is a discretionary and an
extra-ordinary power. It is to be exercised sparingly and only
in those cases where the circumstances of the case so warrant.
It is not to be exercised because the Magistrate or the Sessions
Judge is of the opinion that some other person may also be
guilty of committing that offence. Only where strong and cogent
evidence occurs against a person from the evidence led before
the court that such power should be exercised and not in a
casual and cavalier manner.

99. Thus, we hold that though only a prima facie case is to be
established from the evidence led before the court not
necessarily tested on the anvil of Cross-Examination, it
requires much stronger evidence than mere probability of his
complicity. The test that has to be applied is one which is more
than prima facie case as exercised at the time of framing of
charge, but short of satisfaction to an extent that the
evidence, if goes unrebutted, would lead to conviction. In the
absence of such satisfaction, the court should refrain from
exercising power under Section 319 Cr.P.C……..”

 

Section 319 of the Code confers power on the trial court to find
out whether a person who ought to have been added as an accused has
erroneously been omitted or has deliberately been excluded by the
investigating agency and that satisfaction has to be arrived at on the
basis of the evidence so led during the trial. On the degree of
satisfaction for invoking power under Section 319 of the Code, this
Court observed that though the test of prima facie case being made out
is same as that when the cognizance of the offence is taken and process
issued, the degree of satisfaction under Section 319 of the Code is
much higher.

Having summarised the law on the degree of satisfaction required
by the courts to summon an accused to face trial in exercise of power
under Section 319 of the Code, we now proceed to consider the
submissions advanced by the learned counsel. It is common ground that
the only evidence that the trial court has relied to summon the
appellant to face the trial is the note written by the deceased in his
own handwriting apprehending death at the appellant’s hand. The same
reads as follows:

“Date: 18.11.2004

I, Mulubhai Modhvadiya write this note that the then Irrigation
Minister Babubhai Bokhiriya @ Babulal want to kill me due to
personal differences with me. Therefore I inform to the State
and to the police by this note that whenever I die, then I
request to do thorough investigation because phone calls are
coming threatening to kill me. If I will make complaint today
then he will by using his influence destroy the complaint,
therefore I am keeping this note in my purse and I am clearly
stating that If I will die due to murder then my murder will be
done by Babu Bokhiriya only, if dumb government listen to my
note than take strict action against Babu Bhokhiriya and my soul
will be pleased. I am also giving my finger print on this
letter and also signing under it. Therefore you have no doubt
about it.

Yours sincerely

Sd/-

(Mulubhai Modhvadiya)”

 
It is an admitted position that all those who were put on trial
have now been acquitted by the trial court.

Mr. V.A. Bobde, learned Senior Counsel appearing on behalf of
the appellant submits that in the course of trial of an offence, when
it appears from the evidence that any person, not being the accused,
has committed any offence for which such person could be tried together
with the accused facing trial, the court may proceed against such
person for the offence which he appears to have committed. He points
out that the power under Section 319 of the Code can be exercised when
it appears from the evidence that any person not being the accused, has
committed any offence. In his submission, the evidence would obviously
mean the evidence admissible in law. He submits that the note
allegedly recovered from the deceased expresses mere apprehension of
death and, therefore, it is inadmissible in evidence and does not come
within the ambit of Section 32 of the Evidence Act (hereinafter
referred to as “the Act”). He further submits that the note does not
relate to the cause of death nor it describes any circumstance that led
to his death. It has also been pointed out that the note recovered is
also not relevant under Section 32 of the Act as it has no proximity
with the event of his death, as the same was written over a year ago.

Dr. A.M. Singhvi, learned senior counsel appearing for
Respondent No.2, however, submits that any statement – written or
verbal, made under an expectation of death is relevant under Section 32
of the Act and need not necessarily be followed by death immediately.
He submits that the letter recovered from the deceased discloses a
relevant fact as the same has been made under apprehension of death and
relates to its cause. Though he admits that the letter was written
over a year ago, it is his contention that it can still be taken into
consideration as it is not necessary to have immediate nexus between
the words written and the death. In support of the submission,
reliance has been placed on a decision of this Court in the case of
Rattan Singh v. State of Himachal Pradesh, 1997 (4) SCC 161 wherein it
has been held as follows:
“15. ……..The collocation of the words in Section 32(1)
“circumstances of the transaction which resulted in his death”
is apparently of wider amplitude than saying “circumstances
which caused his death”. There need not necessarily be a direct
nexus between “circumstances” and death. It is enough if the
words spoken by the deceased have reference to any circumstance
which has connection with any of the transactions which ended up
in the death of the deceased. Such statement would also fall
within the purview of Section 32(1) of the Evidence Act. In
other words, it is not necessary that such circumstance should
be proximate, for, even distant circumstances can also become
admissible under the sub-section, provided it has nexus with the
transaction which resulted in the death………………”
We have given our thoughtful consideration to the rival
submissions and the first question which falls for our determination is
whether the note in question is admissible in evidence or in other
words, can be treated as a dying declaration under Section 32 of the
Act. Section 32 of the Act reads as follows:
“32.Cases in which statement of relevant fact by person who is
dead or cannot be found, etc., is relevant.- Statements, written
or verbal, of relevant facts made by a person who is dead, or
who cannot be found, or who has become incapable of giving
evidence, or whose attendance cannot be procured without an
amount of delay or expense, which under the circumstances of the
case, appears to the Court unreasonable, are themselves relevant
facts in the following cases:
1) when it relates to cause of death.-When the statement is
made by a person as to the cause of his death, or as to
any of the circumstances of the transaction which
resulted in his death, in cases in which the cause of
that person’s death comes into question.
xxx xxx xxx”

 

From a plain reading of the aforesaid provision, it is evident
that a statement of a fact by a person who is dead when it relates to
cause of death is relevant. It is an exception to the rule of hearsay.
Any statement made by a person as to the cause of his death or as to
any of the circumstances of the transaction which resulted in his death
is relevant in a case in which the cause of death of the person making
the statement comes into question. Indian law has made a departure
from the English law where the statements which directly relate to the
cause of death are admissible. General expressions suspecting a
particular individual not directly related to the occasion of death are
not admissible when the cause of death of the deceased comes into
question. In the present case, except the apprehension expressed by
the deceased, the statement made by him does not relate to the cause of
his death or to any circumstance of the transaction which resulted in
his death. Once we hold so, the note does not satisfy the requirement
of Section 32 of the Act. The note, therefore, in our opinion, is not
admissible in evidence and, thus, cannot be considered as such to
enable exercise of power under Section 319 of the Code.

The Privy Council had the occasion to consider the meaning of
the expression “circumstances of transaction” used in Section 32 of the
Act in the case of Pakala Narayanswami v. Emperor, AIR 1939 PC 47 and
on page 50 held as follows:

“………The statement may be made before the cause of death has
arisen, or before the deceased has any reason to anticipate
being killed. The circumstances must be circumstances of the
transaction : general expressions indicating fear or suspicion
whether of a particular individual or otherwise and not directly
related to the occasion of the death will not be
admissible……………”

 

Aforesaid view had been approved by this Court in Shiv Kumar v.
State of Uttar Pradesh, (Criminal Appeal No. 55 of 1966, decision dated
29th July, 1966), wherein it was held as under:

 

 

“It is clear that if the statement of the deceased is to be
admissible under this section it must be a statement relating to
the circumstances of the transaction resulting in his death. The
statement may be made before the cause of death has arisen, or
before the deceased has any reason to anticipate being killed,
but general expressions indicating fear or suspicion whether of
a particular individual or otherwise and not directly related to
the occasion of the death will not be admissible. A necessary
condition of admissibility under the section is that the
circumstance must have some proximate relation to the actual
occurrence. For instance, a statement made by the deceased that
he was proceeding to the spot where he was in fact killed, or as
to his reasons for so proceeding, or that he was going to meet a
particular person, or that he had been invited by such person to
meet him would each of them be a circumstance of the
transaction, and would be so whether the person was unknown, or
was not the person accused. The phrase “circumstances of the
transaction” is a phrase that no doubt conveys some limitations.
It is not as broad as the analogous use in “circumstantial
evidence” which includes evidence of all relevant facts. It is
on the other hand narrower than ‘res gestae’ [See Pakala
Narayana Swami v. The King Emperor, AIR 1939 PC 47]. As we have
already stated, the circumstance must have some proximate
relation to the actual occurrence if the statement of the
deceased is to be admissible under s.32(1) of the Evidence
Act……….”

(underlining ours)

 
This Court in the case of Sharad Birdhichand Sarda v. State of
Maharashtra, 1984 (4) SCC 116, after review of a large number of
decisions of the Privy Council, various High Courts and the Supreme
Court, endorsed the view taken by the Privy Council in Pakala
Narayanswami (supra) in the following words:
“21. Thus, from a review of the authorities mentioned above and
the clear language of Section 32(1) of the Evidence Act, the
following propositions emerge:

(1) Section 32 is an exception to the rule of hearsay and makes
admissible the statement of a person who dies, whether the death
is a homicide or a suicide, provided the statement relates to
the cause of death, or exhibits circumstances leading to the
death. In this respect, as indicated above, the Indian Evidence
Act, in view of the peculiar conditions of our society and the
diverse nature and character of our people, has thought it
necessary to widen the sphere of Section 32 to avoid injustice.”

 
All these decisions support the view which we have taken that
the note written by the deceased does not relate to the cause of his
death or to any of the circumstances of the transaction which resulted
in his death and therefore, is inadmissible in law.

 

 

Now we revert to the authority of this Court in Rattan Singh
(supra) relied on by Dr. Singhvi. In the said case, the deceased
immediately before she was fired at, spoke out that the accused was
standing nearby with a gun. In a split second the sound of firearm
shot was heard and in a trice her life snuffed off. In the said
background, this Court held that the words spoken by the deceased have
connection with the circumstance of transaction which resulted into
death. In the case in hand, excepting apprehension, there is nothing
in the note. No circumstance of any transaction resulting in the death
of the deceased is found in the note. Hence, this decision in no way
supports the contention of Dr. Singhvi.

 
The other evidence sought to be relied for summoning the
appellant is the alleged conversation between the appellant and the
accused on and immediately after the day of the occurrence. But,
nothing has come during the course of trial regarding the content of
the conversation and from call records alone, the appellant’s
complicity in the crime does not surface at all.

 
From what we have observed above, it is evident that no evidence
has at all come during the trial which shows even a prima facie
complicity of the appellant in the crime. In that view of the matter,
the order passed by the trial court summoning the appellant, as
affirmed by the High Court, cannot be allowed to stand.

To put the record straight, Mr. Bobde has raised various other
contentions to show that the appellant cannot be put on trial, but in
view of our answer to the aforesaid contentions, we deem it inexpedient
to either incorporate or answer the same.

 

 

 

 
In the result, we allow this appeal and set aside the order of
the trial Court summoning the appellant to face trial and the Order of
the High Court affirming the same.
………………………………………………………………J

 

(CHANDRAMAULI KR. PRASAD)

 
………………………………………………………………J

(PINAKI CHANDRA GHOSE)

 
NEW DELHI,
APRIL 3, 2014.

 

 

 

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