CR.A/28519/1987 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 285 of 1987 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= STATE OF GUJARAT - Appellant(s) Versus BHAILAL MANILAL THAKKAR & 4 - Opponent(s) ========================================================= Appearance : Mr. I.M. Pandya, APP, for Appellant(s) : 1, MR Vijay H Patel for HL PATEL for Opponent(s) : 1 - 5. ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 14/07/2008 ORAL JUDGMENT CR.A/28519/1987 2/6 JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal is filed against the judgement and order dated 9.10.1986 passed by the learned Additional Sessions Judge, Mehsana, in Sessions Case No. 51 of 1986 acquitting the accused for the offence under Sections, 302, 34 and 114 of the Indian Penal Code. 2. The facts, in brief, are that Bai Ramila was admitted in hospital on 14.11.1985. In burned condition, she stated to the Medical Officer that she is living with her husband and two children, elder is one Chetna an younger one is Lalo. At about 9 O'clock in the morning, when her husband was out and her father-in-law had gone out along with her two children, at that time, while she was placing water on stove for heating for taking bath, flames of primus came in contact with her sari and that is how, she has received burn injuries all over the body. Her neighbours came, threw mattress on her and extinguished fire. Immediately her husband came back and she was brought to hospital at Sami. She said that she stays separately from her father-in-law. 3. Upon the aforesaid information, investigation started, her dying declaration was recorded at Exh.53 and after completion of the investigation, the charge sheet was filed against the accused persons for the offences under Sections 498-A and 306 of the Indian Penal Code. Since the case was triable by the Court of Sessions, the same was committed to the District and Sessions Court, Mehsana. The learned Additional and Sessions Judge framed the charges at Exh.3. Since the accused did not plead guilty, the trial was proceeded against all the accused. Vide judgment dated CR.A/28519/1987 3/6 JUDGMENT 9.10.1986, the learned Additional Sessions Judge, Mehsana was pleased to acquit all the accused persons. Being aggrieved by the same, the State has preferred the present Appeal. 4. The learned Additional Public Prosecutor contended that the dying declaration recorded at Exh.26 clearly reflects the involvement of the present accused persons and perusing the attending circumstances, at the time of recording the dying declaration, it indicates that Bai Ramila- victim was in proper state of mind to give dying declaration. It is further contended that upon considering the deposition of Medical Officer Dr. Nayankumar burn injuries were sufficient to cause death. 5. We have gone through the postmortem report and the deposition of Dr. Nayankumar. Perusing the said deposition, it is apparent that the victim had suffered on her face, second and third degree burn injuries; on neck, throat and abdomen, second and third degree; and on thigh and shoulder, second and third degree burn injuries. So far as the other internal injuries are concerned, there were swelling on brain. 6. We have considered the dying declaration at Exh.26 in detail. We have gone through the medical papers on record. Perusing the deposition of Mr. Mevada, Executive Magistrate, who recorded the dying declaration, it clearly transpires there were no bandages covering the face of Bai Ramila, also there were no other bandages on all over the body and she was CR.A/28519/1987 4/6 JUDGMENT placed in cage and, upon that, chaddar was covered. If we consider the deposition of Natvarlal Manilal, father of Bai Ramila, he has stated that when he went to the bed of Bai Ramila, she was speaking irrelevant words and there were bandages on all over the body. Even Narmadaben, mother of Bai Ramila, also supported this version of her husband. Moreover, the deposition of Thakarsinh does not support the deposition of Nathalal- P.W. 4 and who is examined at Exh.13. According to Nathalal, uncle of Bai Ramila, he deposed that he went along with Thakarsinh,-P.W.5, and Bai Ramila told him that Manilal, who happens to be father-in-law of the deceased, caught hold of her and Arvind, who happens to be brother-in-law of the deceased, ignited match. However, Thakarsinh states that Manilal had caught hold and Arvind had ignited match. Nathalal has also deposed that statement of Bai Ramila, which was recorded at Patan, was wrong in order to save the children from harassment. Thakarsinh also supports the said version. In these circumstances, there appears to be material contractions and improvements, which appear to be attempted from the prosecution side, create doubt about the real story. 7. Yet, another important circumstance appears from the record, which create doubt about the dying declaration, is that Doctor, in fact, opined about the fitness of the state of mine of Bai Ramila at about 2.20 in the morning and the dying declaration was recorded at 4 O'clock in the morning. There appears to be no explanation about delay in recording the dying declaration. The only explanation which was offered by the Executive Magistrate as to why immediate preceding to recording of the dying declaration, he has not obtained CR.A/28519/1987 5/6 JUDGMENT fitness certificate from the doctor, that the doctor has informed him that only in case of change in condition of the patient, fresh opinion is given. This appears to be no plausible explanation according to us and rightly, the learned Sessions Judge has raised doubt about the truthfulness of the dying declaration. The doubt about the dying declaration also appears to be on yet another ground that when dying declaration was recorded, as earlier stated, the deceased was not covered with any bandage, as explained by the Executive Magistrate. However, according to the version of Nathalal, Narmadaben and Thakarsinh, the entire body of Bai Ramila was covered with bandage, including that of her face when they reached to Bai Ramila in the hospital. However, it would be interesting to note that even the Doctor, who had conducted the postmortem, also corroborated this version. In this set of circumstances, the truthfulness of the dying declaration is rightly doubted by the learned Sessions Judge. 8. What is important in the case is that the dying declaration has been discarded by the trial Court and rightly so because the Investigation Agency which was sent for recording of the dying declaration at Exh. 25 wherein the police official has sent investigation and in which it was recorded that the deceased had given version that she has been burnt accidentally. When the initial version of the lady of getting burnt accidentally then it does not stand to reason that the same should be believed. Prior to the recording of dying declaration by the Magistrate, another dying declaration was recorded which is at page 55 in which detailed statement has been given by the deceased. When there are two inconsistent dying declarations then it cannot be said that the prosecution CR.A/28519/1987 6/6 JUDGMENT was worth of credit. In that background the learned Sessions Judge meticulously considered the depositions of other witnesses and came to the conclusion that only the prosecution has examined all the interested witnesses and no independent witness was examined, which creates doubt regarding the story of the prosecution. Be that as it may, the truthfulness of the dying declaration is one of the main plank, on which castle of prosecution is grounded. The learned Sessions Judge rightly acquitted the accused of all the charges. The finding recorded by the learned Trial Judge does not call for interference. There is no substance in the appeal. Hence the appeal is dismissed. The bail bond of each of the accused stands cancelled. (BHAGWATI PRASAD, J) (S.R. BRAHMBHATT, J) (pkn)