CR.A/287/1987 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 287 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 HARIJAN KANA MALDE AND OTHERS ========================================= =Appearance : MR MAULIK NANAVATI, ADDL PUBLIC PROSECUTOR for the Appellant MR ANIL S DAVE for the Opponents ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 01/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. State of Gujarat has preferred the present appeal against CR.A/287/1987 2/5 JUDGMENT the judgment and order dated 15.01.1987 passed by the Additional Sessions Judge, Jamnagar in Sessions Case No.83 of 1986 acquitting all the three accused persons for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code. 2. Deceased Sajanben is the widow of younger brother of accused no. 1. Accused no. 2 is the wife of accused no. 1 and accused no. 3 is the son of accused no. 1 and 2. Husband of Sajanben had died three months prior to the incident and after his death, Sajanben had gone to her maternal house at Porbander for about 15 days and had returned to her house in Jamnagar on 14.07.1986. On 15.07.1986, i.e., the date of incident, accused no. 1 had come to her house in the morning and had insisted on her keeping accused no. 3 with her. The reason for such insistence was that Sajanben had no children and the accused persons wanted to usurp the house of the deceased. Sajanben refused to keep accused no. 3 with her and thereupon accused no. 1 got a can of kerosene lying in the house and while accused no. 2 and 3 held Sajanben, accused no. 1 poured kerosene on her and set her ablaze. Thereafter, they all ran away from the place of offence. 3. The Trial Court has acquitted the accused persons by giving them a benefit of doubt. The Trial Court disbelieved the dying declaration of Sajanben only on the same that the same is inconsistent with the evidence of other witnesses and therefore when two views are possible, the one favourable to the accused should be accepted. Therefore, the Trial Court accepting the possibility of Sajanben having sustained burn injuries while cooking, has acquitted the accused persons. CR.A/287/1987 3/5 JUDGMENT 4. We have heard Mr. Maulik Nanavati, learned Additional Public Prosecutor and with his assistance have gone through the record of the case. 5. In order to establish guilt of the accused, Mr. Nanavati has relied upon the dying declaration of Sajanbenj, the yadi sent from hospital to the police station and on basis of which the First Information Report was registered, and the evidence of Executive Magistrate Shri Shukla (PW-8) and Investigation Officer PSI Malek (PW-9). Mr. Nanavati has submitted that the dying declaration has been properly recorded by the Executive Magistrate and the same does not suffer from any infirmity. As evident from the endorsement of the doctor on the said declaration, the deceased at the relevant time was in a fit state of mind and capable of making a statement at the time when the statement was recorded. He has further submitted that there is nothing on record to show that the capacity of the maker of the statement was impaired and the even the Trial Judge has not entertained any doubt whether the deceased was in a fit physical and mental state to make the statement. 6. Though some neighbours of the deceased, who have been examined by the prosecution as witnesses, have either not stated the cause of burn suffered by deceased because of not having seen the incident and not having inquired about the same or as in the case of witness Punjiben Muljibhai (PW-2) who has given a different version of the burn injury that when asked the deceased had informed her that she sustained burn injuries on her body because of the cooking stove blushing, Mr. Nanavati has submitted that this fact by itself would not render CR.A/287/1987 4/5 JUDGMENT the dying declaration unreliable or cast a doubt over its correctness. He has submitted that nothing has been elicited from the cross examination of the Executive Magistrate or the Investigating Officer to show that the deceased was tutored by any of her relatives prior to her having given the statement to the Magistrate or that she was in any manner impaired from giving a correct version of the incident. He has further submitted that the Trial Court has erred in accepting the bald argument by the defence that in view of the inconsistencies between the dying declaration and the evidence of Smt. Punjiben Muljibhai (PW-3), the evidence cannot be held to be a reliable one. No cogent reasons have been given by the Trial Court for disbelieving the dying declaration. No finding has been recorded that the said dying declaration suffers from any infirmity or that the same is not true and voluntary or such as does not inspire confidence. 7. In order to appreciate the correctness of the contentions raised by Mr. Nanavati, we have been taken through the statement of Sajanben which has been treated to be a dying declaration under Section 32(1) of the Evidence Act as well as the evidence of PW-3 Smt. Punjiben, who has given a different version regarding occurrence of the incident. In the dying declaration, Sajanben has given a brief sketch as to how the accused no. 1 came to her house and told her to keep accused no. 2 with her in the house and on her refusal brought kerosene from the house and with help of other accused persons poured kerosene on her and set her ablaze. Coming to the evidence of PW-3, it is no doubt true that she has stated that when she asked the deceased as to how she sustained burn injury, she had informed her that the primus had blushed CR.A/287/1987 5/5 JUDGMENT while she was cooking and had therefore sustained burn injury. 8. In view of the fact that the dying declaration though an oral one shows that the cause of death was accidental. A subsequent dying declaration recorded by Magistrate would not be a strong piece of evidence. This would be more so when the deceased had the time for reflection and give a second thought to her perception. 9. In view of the aforesaid, it cannot be said that the Trial Court has not taken a view which is possible in law to be taken. When a Court takes a possible view in law then, it is difficult to term the same to be perverse or against the cannons of law. In this view of the matter, it would not be prudent to upset the verdict of acquittal into the case of conviction when no such infirmity is found by us, which would persuade us to do the same. Consequently, we uphold the decision of the Trial Court and hold that the accused is not guilty of the charges levelled against them. The appeal is dismissed. Bail bonds stand cancelled. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar