CR.A/20620/2001 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 206 of 2001 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 ? ====================================== PATEL KHODABHAI RAMDAS Versus STATE OF GUJARAT & ANOTHER ====================================== Appearance : MR ASHUTOSH R BHATT for the Appellant Mr Maulik Nanavati, Additional Public Prosecutor for the Opponents ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 11/11/2008 ORAL JUDGMENT CR.A/20620/2001 2/3 JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal has been filed by the appellant – original accused challenging judgment and order dated 23rd February 2001 passed by the learned Additional Sessions Judge, Mehsana in Sessions Case No.128 of 2000 by which the appellant has been convicted under Section 302 of the Indian Penal Code. Heard the learned counsel for the parties. The learned trial Court has based conviction precisely on the dying declaration. Learned counsel for the appellant assailing the decision of the learned trial Court has submitted that all the other witnesses who were produced on behalf of the prosecution have turned hostile and the only piece of evidence which is against the accused person is dying declaration. According to the learned counsel for the appellant, the dying declaration is defective and there is no intrinsic worth in it. The doctor has not certified that the deceased was in a fit state of mind to give statement before the statement was recorded left big toe's impression of the deceased was taken on the dying declaration, which is an unnatural conduct of the prosecution to take such impression. A suspicion is sought to be created by the argument of the learned counsel for the appellant on the basis of the statement of Dr Dharti Bhikhabhi, Medical Officer, Exhibit 5 who stated that there is ink mark on the right thumb of the deceased. The learned Additional Public Prosecutor, per contra, submitted that the argument of the learned counsel for the appellant is too mundane to strike at the root of the prosecution case because, the discrepancy as indicated does not take the prosecution case to get diluted. The Inquest panchnama indicates that there was ink mark on the right thumb. The hands were tied with the bandages because of CR.A/20620/2001 3/3 JUDGMENT which her thumb impression could not have been taken at the time when the dying declaration was recorded. We have considered the rival submissions. We are of the opinion that the dying declaration recorded by the Executive Magistrate is precise. The dying declaration is in the form of question and answers. The answers have been given candidly. There is no incoherence in the answers given by the victim. The satisfaction of the doctor about the condition of the deceased is there at the time of recording of statement. All these things persuade us to give credence to the dying declaration and the statement of the learned Executive Magistrate. If the dying declaration is believed in our considered opinion, the findings recorded by the learned trial court cannot be diluted. In that view of the matter, no fault can be found with the conviction recorded by the learned trial Court. The appeal has no force. Hence, the same is dismissed. (Bhagwati Prasad, J.) (Bankim N Mehta, J.) *mohd