CR.A/81/1987 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 81 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 - Appellant Versus BHAGWANDAS MAGANDAS MENDRA TAL.GANDHINAGAR – Respondents ========================================================= Appearance : MR MAULIK NANAVATI ADDL PUBLIC PROSECUTOR for Appellant: MR MUKESH B DAVE for Amicus Curiae: ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 28/07/2008 ORAL JUDGMENT CR.A/81/1987 2/7 JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The present appeal preferred by the State of Gujarat challenging the judgment and order dated 17.10.1986 passed by the Additional Sessions Judge, Narol in Sessions Case No. 100 of 1986 acquitting the present respondent for the offence punishable under Section 302 of the Indian Penal Code. 2. The case of the prosecution is that accused Bhagwandas and deceased Kantaben had a love marriage about a month prior to the date of incident. Both were staying as tenants in the house of PW-2 since about 10-15 days prior to the date of incident. Accused was working on a 'lari' and selling pea-nuts. He returned home from work on 29.04.1986 at about 2-00 AM and and inquired from his wife as to where she was. She told him that she had gone to her masi's house. Accused got angry and nastily asked whether she had gone to befriend somebody. So saying he told her to die and poured kerosene on her and set her on fire. On getting burnt, deceased ran out of the house shouting for help. On hearing her screams, Keshavlal PW-2, Gaurishankar PW-3, and Babubhai PW-5, who were staying in the neighbourhood came out to help. The deceased told them that she was burnt and asked them to take her to her masi's house. Accordingly, the accused held her hand and walked her to the CR.A/81/1987 3/7 JUDGMENT house of Kantibhai PW-4 (Masa of the deceased). Thereafter, at about 7-45 in the morning, the deceased was taken to the hospital, where she succumbed to her injuries. 3. Case was registered against the accused on the basis of complaint given by deceased Kantaben to PSI Solanki PW-10, for offence punishable under Section 302 and he was put on trial. Before the trial Court, the prosecution relied on the dying declaration recorded by Executive Magistrate PW- 1, PSI Solanki PW-10 and PSI Patel PW-15. The trial Court however found several infirmities in the dying declaration and in absence of any other corroborating evidence found, it is unsafe to convict the accused relying solely on the said dying declarations. The trial Court has observed that though the doctor was present in the hospital, neither PW-1 nor PW-10 have made any attempts to obtain any endorsement from the doctor that the patient was conscious and in a fit state of mind to give her statement. 4. Mr. Nanavati, learned APP for the appellant has submitted that the trial Court has committed an error in not relying upon the dying declaration recorded by the Executive Magistrate only because no endorsement of the doctor was taken by Magistrate. He has submitted that endorsement by the Doctor of the patient being conscious and in a fit state of mind is not a rule of law but CR.A/81/1987 4/7 JUDGMENT only a rule of caution. He has further submitted that the Magistrate being an independent witness, there is no justifiable reason for not believing this evidence that when he went to record the statement of Kantaben, she was conscious and was given proper answers to the question put to her by him. He has also submitted that the factum of the patient in conscious and in the fit state of mind is duly reflected in the yadi sent from the hospital to the Magistrate, which bears the endorsement of the doctor to that effect. 5. We are in agreement with the submission of Mr. Nanavati that mere absence of the endorsement by the doctor by itself could not be fettle or such as would rendered the dying declaration incredible. However, considering the surrounding circumstances, we are in agreement with the findings recorded by the trial Court that the dying declaration does not inspire confidence. 6. The incident is stated to have happened at about 2:00 A.M and the dying declaration has been recorded at about 11:45 AM. Immediately after the incident, as is evidence from the testimony of Keshavlal PW-2 and Gaurishankar PW-3, the deceased was taken to the house of Kantibhai PW- 4, masa of the deceased. From the house of PW-4, the deceased was shifted to the hospital at about 7:45 A.M. Therefore, the possibility of CR.A/81/1987 5/7 JUDGMENT the deceased having been tutored by her relatives cannot be ruled out. 7. Also neither Keshavlal PW-2 nor Gaurishankar PW- 3, who immediately rushed to the house of the deceased from hearing her screams were informed by the deceased that she was set fire by the accused. It has also come an evidence of Gaurishankar PW-3 and Kantibhai PW-4 that it was the accused who held the hand of deceased and walked her to the house of PW-4. Further the medical certificate issued by the doctor at Shardaben Hospital clearly mentions that the deceased had received accidental burns. This fact assumes importance as the evidence shows that the deceased was brought to the hospital by Kantibhai PW-4, who is a relative of the deceased. 8. Mr. Nanavati has submitted that in addition to the dying declaration recorded by the Magistrate, statements of the deceased were also taken by PSI Solanki PW-10 and PSI Patel PW-15 in which the deceased has given a similar account of the incident. He has submitted that no good reasons have been given by the trial Court for disbelieving the said dying declaration except for the fact that they were recorded by the police officers. 9. We are not impressed with the said arguments. A CR.A/81/1987 6/7 JUDGMENT perusal of the statement recorded by PW-10 shows that there is no endorsement by the doctor that the patient was conscious and in the fit state of mind to have her statement. Also the said statement, which was treated as a complaint, bares the thumb impression of deceased Kantaben. However, Dr. Deshmukh PW-13, who conducted the autopsy, has categorically stated that fingers of both hands of deceased were burnt. Even the Executive Magistrate PW-1 has stated that he could not take thumb impression of the deceased as her fingers were burnt. Similarly, the statement recorded by PW-15 does not bare any endorsement of the doctor. Therefore, we are in agreement with the findings recorded by the trial Court that the dying declaration recorded by the police officers do not inspire confidence. Also the version given therein does not find any corroboration from the evidence adduced by the prosecution. This fact acquires importance in this back ground when the deceased had not complained to any one of these infirmities after occurance. For the first time in hospital, she complained before the police and Magistrate. It is also important that the masi of the deceased, in whose house she was taken has not been complained of in the manner the prosecution case is made out. 10.It was also submitted by Mr. Nanavati that the accused in his statement under Section 313 has CR.A/81/1987 7/7 JUDGMENT stated that when he reached home and entered the house, he saw his wife lying in a burnt condition. Thereafter, he raised cries and called the neighbours. This explanation offered by the accused is contrary to the evidence on record and this aspect has not been considered properly by the trial Court. It is no doubt true that false explanation offered by the accused is an additional circumstances pointing towards the guilt of the accused. However, in the present case, this circumstance by itself could not be sufficient to sustain a conviction in absence of any other cogent evidence unerringly pointing towards the guilt of the accused. More particularly, when the evidence indicate that it was a recent love marriage and the parties were not in any way in agreement with each other. 11.We are therefore, of the considered opinion that the reasons given by the trial Court are correct and cogent. We find no infirmity with any of the finding recorded by the trial Court so as to warrant any interference. Accordingly, the appeal deserves to be rejected and is therefore dismissed. Bail bond stands cancelled. [BHAGWATI PARASAD, J.] [S.R.BRAHMBHATT, J.] pallav