CR.A/71219/1987 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 712 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 JAYABEN MOHMADOOBKHAN MAMU PATAN'S CHAWL CHAMANPURA ANOTHER ====================================== Appearance : Mr Maulik Nanavati, Additional Public Prosecutor for the Appellant MR JM PANCHAL for the Opponents ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT CR.A/71219/1987 2/5 JUDGMENT Date : 26/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal has been filed by the State of Gujarat against the judgment and order dated 17.06.1987 passed by the City Sessions Judge, Ahmedabad in Sessions Case No. 275 of 1986. Present respondents – Jayedaben Maheboobkhan and Mehboobkhan Sikandarkhan were put on trial for having caused death of one Jamilaben, wife of younger brother of Mehboobkhan, on 7.11.1983 by pouring kerosene on her and setting her on fire. The other witnesses, including the father and brother of deceased Jamilaben, not having supported the prosecution, the only evidence on which the prosecution relied for proving the guilt of accused before the trial court is the so- called dying declaration said to have been made by deceased Jamilaben before Dr. Hasumatiben Patel (PW-3). The Trial Judge, however, did not find the said dying declaration truthful and genuine and, therefore, in absence of any other evidence connecting the accused with the crime, acquitted them of all charges. We have heard Mr. Maulik Nanavati, Additional Public Prosecutor, for the State. We have perused the judgment impugned before us and have gone through the entire evidence on record. At the outset, it has been fairly submitted by Mr. Nanavati, learned Counsel for the State that there is no other cogent evidence except the oral dying declaration made by deceased Jamilaben before Dr. Patel at the hospital for establishing the guilt of accused persons. He has, CR.A/71219/1987 3/5 JUDGMENT however, submitted that the said declaration is genuine and trustworthy, and is amply corroborated by the documentary and other evidence adduced by the prosecution, and therefore can be relied upon to found the conviction of accused persons. He has further submitted that there is no reason for the doctor to falsely implicate the accused or say something which was otherwise not informed to her by the deceased. In support of his submission that dying declaration, if found reliable, can be made the sole basis for conviction he has cited several judgments of the Supreme Court and this High Court. There cannot be any dispute with the position of law but the moot question is whether the dying declaration in the present case is reliable and inspires confidence. Jamila was brought to the hospital at 11:25am and died within 10 minutes at about 11:35am. Dr. Patel (PW-3), on the day of incident, was Assistant Police Surgeon at the Civil Hospital, Ahmedabad and she was the first one to examine Jamila when she was brought to the Casualty Department by her father-in-law and husband. Dr. Patel noticed that Jamila had severe third degree burns all over her body. She was writhing with excruciating pain and gasping for breath. Therefore, she instantaneously referred her to the emergency where she was examined by another doctor who made the following note on her case paper: i. Pulse not palpable. ii. B.P. not recordable iii. Pupils bilaterally dilated and fixed, not reacting to light. iv. Respiration fast and shallow. v. Patient is gasping. vi. Heart rate 140 per minute. CR.A/71219/1987 4/5 JUDGMENT About 10 minutes later Jamila died. Her case papers show a note that her heart sound is absent and respiration is absent. In the background of this evidence which records the condition of deceased at the time when she was brought to the hospital and the fact that within ten minutes thereafter she died, we are in agreement with the conclusion arrived at by the Trial Judge that even if a statement had been made by the deceased, it would be unsafe to rely on the same to convict the accused, especially in absence of any other corroborating evidence. We may note here that Dr. Patel in her cross examination has admitted that the mental condition of the patient was very badly affected at the time when she was brought to the hospital and that the patient was not coherent in her speech. Also, as per the prosecution the incident is stated to have occurred at around 9:30am and Mohmedkhan (PW-1), father of deceased, and Ayub (PW-2), brother of deceased, who brought the deceased to the hospital have stated in their evidence that Jamila had become unconscious after the incident and had not regained consciousness thereafter till the time of her death. Under these circumstances, as rightly observed by the Trial Judge, the possibility of doctor having confounded the statement made by someone else as to what had happened as the statement made by deceased cannot be ruled out completely. Lastly, in the E.P.R. Register maintained at the hospital, Dr. Patel has mentioned the name of only accused Jayedaben and not accused Mehboobkhan. As a cumulative effect of all these circumstances, we are of the opinion that the dying declaration upon which the prosecution is relying is not convincing and free from such doubt as to make it the sole basis for convicting the accused in absence of any other independent and reliable corroborating evidence. We, therefore, see no reason to interfere with the judgment of the Trial Court. CR.A/71219/1987 5/5 JUDGMENT The appeal deserves to be rejected and is accordingly dismissed. Bail bonds, if any, stand cancelled. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd