CR.A/425/1987 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 425 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 ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 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 ? 5 Whether it is to be circulated to the civil judge ? ========================================= = STATE OF GUJARAT Versus KANUBHAI MARGHABHAI PATEL AND OTHERS ========================================= =Appearance : MR SP HASURKAR, ADDL PUBLIC PROSECUTOR for the Appellant MR YM THAKORE (appointed) for the Opponents ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 30/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The present appeal has been filed by the State of Gujarat against the judgment and order of acquittal dated 1.4.1987 CR.A/425/1987 2/5 JUDGMENT passed by the learned Additional Sessions Judge, Nadiad in Sessions Case No.7 of 1987. 2. It is the case of the prosecution that on 19.9.1986, at about 2.00 p.m., Ishwarbhai Patel, who was holding agricultural land in village Dagagipura, Taluka Anand, was sitting in his agricultural field, at that time, accused persons came there and poured petrol on him and Naginbhai- accused No.3 ignited the match which resulted into burn injuries to deceased Ishwarbhai. He succumbed to the said injuries on 24.9.1986 and on this fact, a complaint came to be filed, which was investigated and after completion of the investigation, chargesheet was filed against four respondents accused persons. 3. Since the case was triable by the Court of Sessions, it was committed to the Court of Sessions and chargesheet was framed for the offence punishable under Section 302 of the Indian Penal Code. The accused persons did not plead guilty and all the accused persons were put to the trial and after considering the entire evidence led before the learned Additional Sessions Judge, Nadiad, the learned Judge was pleased to acquit all the respondents for the offence charged against them. Being aggrieved by the same, the State has filed the present appeal before this Court. 4. The learned Additional Public Prosecutor took us through the entire evidence on record and submitted that the learned Additional Sessions Judge ought not to have acquitted the respondents accused, considering the evidence which is on the record. He contended that the evidence of Medical Officer CR.A/425/1987 3/5 JUDGMENT at Exh.23 clearly indicates that burn injuries were caused because of pouring of the kerosene by other persons. He also took us through Inquest Panchnama in order to buttress his contention that injuries are homicidal injuries. He, then, took us through an important piece of evidence, namely dying declaration, at Exh.16, which was recorded by the Executive Magistrate and another dying declaration, which was recorded vide Exh.25 by Dr.Hemant Hasmukhbhai shah, working as Medical Officer in the hospital run by Umreth Nagar Palika. 5. The learned Additional Public Prosecutor contended that the evidence of Dr. Hemant read with dying declaration recorded, is consistent with dying declaration, which was recorded by the Executive Magistrate at Exh.16. We have gone through the evidence of Dr. Hemant, as well as Executive Magistrate Shri Bhawanichand S. Bhatt, at Exh.14. Perusing the said evidences, we find many inconsistencies between these two dying declarations. The first dying declaration which was sought to be relied was recorded by Dr. Hemant. Wherein it is mentioned that the other person who was with the accused, could not be identified. If that was so, we fail to understand how investigating agency could book other three accused persons. Even the dying declaration recorded by the Executive Magistrate clearly states that the accused No.1 has poured the kerosene and ignited the match. In the said dying declaration, there is no whisper about the existence of other persons. 6. It may be noticed here that ability of the deceased in identifying the assailant is also doubtful. He was an old man having cataract in the eyes. Admittedly, he did not identify CR.A/425/1987 4/5 JUDGMENT the other alleged accused who was so referred by the deceased in his first dying declaration. Thus, there is a reasonable doubt about his capacity to identify the accused. 7. This factor assumes importance that in his second dying declaration, he only names one accused. Thus, the two dying declarations are inconsistent. In the background of the deceased being a man with cataract and prevaricating in his dying declarations, no assurance is available on record to support the prosecution case. The daughter of the deceased and the son-in-law have also not supported the prosecution case. 8. It is really unfortunate that very near and dear relatives of the victim have turned hostile and do not corroborate the version of the deceased in his dying declaration, namely to the extent that son-in-law intervened when quarrel took place on the earlier part of the day. In this set of circumstances, since the motive behind the crime is not getting established beyond reasonable doubt and material inconsistent which are referred hereinabove, do not inspire confidence, with reference to version of the deceased in his either of the dying declarations. 9. Apart from the fact that the Executive Magistrate who recorded the dying declaration, clearly admits in his cross- examination that he has not verified from Doctor whether the patient is conscious or he has not recorded any such endorsement of the doctor. Not only that he admits that he recorded the dying declaration of the person identified by the Nurse as Ishwarbhai. In this set of circumstances, since CR.A/425/1987 5/5 JUDGMENT primary evidence referred hereinabove, does not inspire confidence, we do not propose to interfere in the acquittal recorded by the learned Additional Sessions Judge and consequently, the appeal is dismissed. Bail bonds stand cancelled. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar