CR.A/36620/2000 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No.366 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD AND 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? ========================================================= = KAMALABEN SAVANLAL MARWADI - Appellant Versus STATE OF GUJARAT - Respondent ========================================================= = Appearance : MR RAJESH K KANANI for Appellant for Appellant. MR MAULIK G. NANAVATI, APP for Respondent. ========================================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 17/10/2008 ORAL JUDGMENT CR.A/36620/2000 2/4 JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) Heard the learned advocates for the parties. 2. This conviction is recorded on the basis of Dying Declaration. We have been taken through the dying declaration and the medical record. From the medical record, we find that at 4.40 p.m. yadi was sent. Record also shows that it has been written there that at 4.45 p.m., the patient is not responding. Thereafter, the doctor has made overwriting by scoring it off and written that the patient is fit to give statement. Thus, two versions in writing are available. When we read the dying declaration, it appears that questions have been asked and the answers are given. The answers are of misunderstood perception. 3. When the question was put to the deceased that who burnt you, she answered that I was killed by Kamla by mogari. This shows incoherence in the mind of the deceased. Reliance has been placed by the prosecution on dying declaration, which appears to be a doubtful proposition. CR.A/36620/2000 3/4 JUDGMENT 4. Apart from dying declaration, there is no evidence on record. All other witnesses have turned hostile. That being the position, it would not be safe to convict the accused only on the basis of uncorroborated dying declaration, which has background of being incoherent. Answers were given by the deceased in the form of misunderstood perception. Where doctor recorded that she was not in a position to give statement though the same was scored off later on, it shows uncertainty. This is also important that the case papers indicate that patient has become unconscious after 6.30 p.m., but the recording of the statement of the deceased is said to have continued beyond that time. Thus, there is a serious doubt about it being correct. 5. Therefore, we are not prepared to base conviction only on the basis of uncorroborated dying declaration. That being the position, the conviction recorded by the learned Judge is unsustainable and, therefore, the same is quashed and the accused is acquitted of the charge levelled against her. Consequently, the appeal is allowed. The conviction recorded under Section 302 IPC by the learned Additional City Sessions Judge, Ahmedabad is hereby CR.A/36620/2000 4/4 JUDGMENT quashed and set aside. The appellant-accused is acquitted of the charge levelled against her. The accused is ordered to be set at liberty forthwith if not required in any other case. Direct Service is permitted. [Bhagwati Prasad, J.] [Bankim N. Mehta, J.] Rajendra**