CR.A/1427/1986 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1427 of 1986 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 MANIBEN DUDABHAI & 1 - Opponent(s) ========================================================= Appearance : Ms. Meeta Panchal, APP, for Appellant(s) : 1, MR KB ANANDJIWALA for Opponent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 10/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) CR.A/1427/1986 2/4 JUDGMENT The present appeal is filed against the decision of the trial Court in Sessions Case No. 21 of 1986 whereby the learned trial Judge acquitted the present respondents giving benefit of doubt. The case was initiated on the basis of the report lodged by the Head Constable Yasin Miya Mota Miya Chauhan on 15.12.1985 at 0.30 hours at Gondal Taluka Police Station. The trial Court after considering the case of the prosecution has come to the conclusion that though the case rests on the strength of dying declaration recorded by the Executive Magistrate of the deceased but it does not inspire confidence. The dying declaration recorded by the police was also not relied on by the trial Court. Therefore, substantive evidence being not considered sufficient, the factum of motive that the accused Mavji had illicit relations with sister-in-law of elder brother was also not considered to convict the accused persons. 2. We have examined the case. Accused No. 2 admitted that at the time of the accident he was not present. Therefore, offence under Section 302 of the I.P.C. simpliciter was not held against him. 3. As regard accused No. 1 Maniben Duda, mother of Mavji, it is alleged in the dying declaration that while the deceased Manjulaben was preparing food i.e. rotis she came and poured kerosene on her and burnt. Then she was taken to the hospital. Thereafter, treatment was started and dying declaration is also allegedly recorded. From the statement of the doctor who examined her first we find that the doctor has stated that when she was brought her condition was not good. CR.A/1427/1986 3/4 JUDGMENT Her Blood Pressure was not recordable. Her pulse was not palpable and heart beat could not be heard and she was not conscious. There were 95 per cent burns on her person. Dr. Kusumben PW-5 deposition, on examination we find which if read in Gujarati would be as under (page 57): “.....ratna 1-00 vaGya su2I drdInI iS4it qrab htI. tenI qrab iS4it htI tenu tar` Ae 0e tenI naDI brabr n htI. LaeahInu dba` mapI xkay tem n htu. H/dyna 2bkara nae>2ela n4I. drdI raDae naqta n hta. drdI ka>[ bael bael krta n hta. Hu drdIne tpasIne trt jtI rhetI htI. NaaDIna 2bkara Aavta n haey laehInu> dba` mapI xKay tem n haey 0ta> p` drdI wanma> haey.” 4. If this statement of the doctor is taken into consideration then this Court is of the considered view that the finding arrived at by the learned trial Judge where at Exh. 15 dying declaration has been disbelieved by him does not stand on such footing which can be said to be perverse because in dying declaration the lady has not been able to give the name of the accused – mother-in-law. A specific question was asked to her as to what is the name of the mother-in-law of the deceased – Manjulaben. She replies she does not know. If that was the incoherence of her state of mind then it cannot be said that she was a competent witness to give a dying declaration and a dying declaration in such circumstance could not have been relied on. The physical state of the patient wherein neither blood pressure was recordable nor pulse was palpable nor heart beat was available. If the prosecution comes out with the story of that dying declaration be believed it cannot be said CR.A/1427/1986 4/4 JUDGMENT that prosecution stands on a solid footing. In that background when the learned trial Judge has disbelieved the story of dying declaration then the dying declaration recorded by the police constable falls on the same category because the patient was not in a fit condition of mind to have stated things correctly. In the aforesaid circumstances we find that the dying declaration recorded by the Executive Magistrate does not inspire confidence. There had no other direct evidence then the story of illicit relationship of accused No. 2 with the sister- in-law of his elder brother is hardly of any importance which can form the basis of any such conclusion which would make us to believe that the story as given by the prosecution is believable. Thus in an appeal against acquittal where there is inherent improbabilities available on record to believe the dying declaration, we do not think that acquittal is liable to be converted into conviction. The learned trial Judge was right in not believing the dying declaration. There is no force in appeal. Hence the same is dismissed. Bail bonds stands cancelled. (BHAGWATI PRASAD, J) (S.R. BRAHMBHATT, J) (pkn)