CR.A/55520/2000 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 555 of 2000 With CRIMINAL APPEAL No. 556 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ====================================== 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 ? ====================================== PALUBEN D/O VASHRAMBHAI BECHARBHAI Versus STATE OF GUJARAT ====================================== Appearance : MR YOGESH S LAKHANI for the Appellant Ms Mita Panchal, Additional Public Prosecutor for the Opponent ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA CR.A/55520/2000 2/5 JUDGMENT Date : 25/11/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeals have been preferred by the appellants – original accused against the judgment and order dated 13.4.2000 passed by the learned Sessions Judge, Junagadh in Sessions Case No.83 of 1997. The present case which, on the face of it, proves the principle “a man may lie, but the circumstances never” as correct. The case of the prosecution coming from the complaint and the dying declaration given by the deceased is that he has illicit relations with one Paluben (accused No.1) who also have illicit relation with one Salim (accused No.2). It is the case of the prosecution that while he was sleeping in an awaken condition on a cot at Paluben's residence situated in Boardinvas, Pancheshwar, Junagadh both the accused have asked the deceased to marry Paluben and upon denying, both the accused persons have poured kerosene on him and ignited. The deceased, as per his complaint, in a burning condition left the house of accused No.1 and caught a rickshaw and went to his home at Satyam Apartments, which is at a distance of 1 km and told the facts about the incident to all his family members. His family members, thereafter, removed the injured complainant in another rickshaw to the hospital. At 12.30 AM (midnight) his complaint was recorded by the Police Officer, which was completed at 1 AM. Thereafter, immediately his dying declaration was recorded by the Executive Magistrate. In his complaint and in his dying declaration he has implicated both the accused as the persons who have caused him burn injuries at the residence of accused No.1. Subsequently, he succumbed to the injuries. CR.A/55520/2000 3/5 JUDGMENT Having regard to the evidence recorded before the learned Sessions Judge it comes on record that the statements of neighbours of accused No.1 were recorded by the Investigating Officer, but nobody is examined in the present case to substantiate the theory of the incident having taken placed at Paluben's residence. After the complaint is filed at 3 AM (midnight) the police went to Paluben's residence and she was found present there. Her conduct subsequent to the incident is consistent with her innocence. The police thereafter took Paluben to the police station after locking her house and key of the lock was given to her. From the police station she was sent to judicial custody. Surprisingly, thereafter, on the next day morning at 9.45 AM the police again went to the residence of Paluben with the officer of FSL and draws the earth sample where allegedly kerosene stains were there and draws the sample of “pati”, which is used to tie the cot. A control sample of floor was also taken. It is to be noted that in the report of the FSL both the samples along with control sample so taken shows the absence of hydrocarbon particles (kerosene). This takes us to another question as to how did the deceased travel in a rickshaw in a burning condition and reach his home at a distance of 1 km. Surprisingly, no panchnama of the rickshaw in which the deceased had travelled is drawn nor any statement of the rickshaw driver was recorded. Even when the family members of the deceased took the deceased in such burning condition in another rickshaw to the hospital, the same is the position. It comes in the further statement recorded of accused No.1 – Paluben under Section 313 of the Criminal Procedure Code, 1973 that she is the mother of four children out of whom one daughter was CR.A/55520/2000 4/5 JUDGMENT married and remaining three children including daughter aged about 17 years, another daughter aged about 13 years and son aged about 3 years were residing with her. In any case, the investigation did not travel an inch to find out whether any other family members of Paluben including her children were there in the house at midnight or not. Even it is not investigated that if they were not there, at which other place the children or other family members of Paluben were there on the night of the incident. All these circumstances collectively make us to believe that the dying declaration and the complaint given by the deceased is either out of vengeance against Paluben and Salim or is a version fabricated. We are, therefore, constrained not to accept the findings given by the Sessions Court to confirm the conviction and consequently the sentence. We find the version of the complainant in form of Dying Declarations not reliable, truthful and inspiring confidence. It is to be noted that all the family members of the deceased who did not support the case of the prosecution any further have categorically stated that the deceased was not in a position to speak when he was hospitalised. This is further supported by the medical evidence on record that at the time when the complaint was recorded or dying declaration was recorded of the complainant, physical condition of the complainant was poor and even an endorsement was also taken of one of his family members on the record of the medical papers that they were made to understand about very serious condition of the patient. The medical officer specifically says in his deposition that the condition of the patient is shown to be poor. Under these circumstances also the complaint and the dying declaration of the deceased cannot be said to be truthful, reliable and inspiring confidence. CR.A/55520/2000 5/5 JUDGMENT Under these circumstances, the conviction of both the accused – appellants of both the appeals cannot be upheld. The appeals are accordingly allowed. The conviction recorded by the learned Sessions Judge by his judgment and order dated 13.4.2000 rendered in Sessions Case No.83 of 1997 is set aside. Accused No.2 – Salim Abdreman Shaikh is in jail for more than 10 years and he is directed to be released forthwith if not required in any other case. Fine paid, if any, by either of the accused is ordered to be refunded back to them. Bail bonds of accused No.1 – Paluben stands cancelled. Appeals are accordingly allowed. (Bhagwati Prasad, J.) (Bankim N Mehta, J.) *mohd