R/CR.A/378/1994 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT
AHMEDABAD
CRIMINAL APPEAL No. 378 of 1994
FOR APPROVAL AND SIGNATURE :
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE B.N. KARIA
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
or any order made thereunder ?
STATE OF GUJARAT….Appellant(s)
Versus
SALIM MUSABHAI GHANCHU
2….Opponent(s)/Respondent(s)
Appearance :
MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
HCLS COMMITTEE, ADVOCATE for the Opponent(s)/Respondent(s)
No. 1 – 3
Mr PRATIK B BAROT, ADVOCATE for the Opponent(s)/Respondent(s)
No. 1 – 3
CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
and
HONOURABLE MR.JUSTICE B.N. KARIA
7th December 2017
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CAV JUDGMENT (PER : HONOURABLE Mr. JUSTICE B.N.
KARIA)
This Appeal, preferred by the State of Gujarat
under Section 378 of the Code of Criminal Procedure,
1973 [“Code” for short] assails the judgment and
order dated 5th January 1994 passed by the learned
Sessions Judge, Amreli in Sessions Case No. 4 of 1993,
whereby the respondents-original accused have been
acquitted on benefit of doubt, as per provisions of sub-
section [1] of Section 235 of the Code for the offence
punishable under Section 498A, 498A read with
Sections 34 114, Section 302 IPC, Section 302 read
with Sections 34 114 of the Indian Penal Code
[“IPC” for short].
The facts –
The prosecution case as it unfolded before the
trial Court is that on 31st August 1992, at about 22:00
hours, all the accused [respondents herein]; which
includes a child accused named Rashida [daughter of
Musa Jamal] had given physical and mental torture to
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the deceased Roshan, who happens to be the wife of
the accused no. 1-Salim Musabhai Ganchi and
daughter-in-law of accused no. 2 Jenuben and sister-
in-law of the accused no. 3-Samina @ Salma [daughter
of Musa Jamal] and thereby committed an offence
punishable under Section 498-A IPC. It was further the
case of prosecution that with a common intention to
kill the complainant-Roshan, the accused no. 2 and
juvenile Guddy poured kerosene on the deceased and
accused nos. 1 3 put her ablaze and thereby
caused fatal injuries to Roshan and murdered her and
thereby committed an offence punishable under
Sections 302 IPC and since all the accused have aided
and abetted each other and thereby committed an
offence punishable under Section 302 read with
Sections 34 114 IPC, all the accused persons were
charge-sheeted to stand trial for the same.
Relevant circumstances
All the accused persons ie., the respondents
herein denied charges levelled against them and
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claimed to be tried. Therefore, the prosecution, in
order to bring home the charge levelled against each
of the accused person, submitted a muddamal list at
Exh 7; list of documents at Exh. 8, which includes
complaint, dying declaration and panchanama of the
scene of offence and photographs at Exh. 30. The
prosecution has also adduced oral evidence by
examining eleven witnesses and thereafter, closed its
evidence by filing a purshis Exh. 49.
Upon completion of the evidence, the accused-
respondents herein were examined under Section 313
of the Code with regard to the circumstances
incriminating against them, emerging from the
prosecution evidence. The accused persons denied
their involvement stating that they have been falsely
implicated and they do not know anything about the
incident.
And, upon hearing the submissions made before
the trial Court and after appreciation of evidence –
both ocular as well as documentary, the trial Court
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found that the prosecution has been able to establish
the homicidal death of deceased-Roshan having
sustained 95% burn injuries at about 22:00 on 31st
August 1992, however, failed to prove that kerosene
was poured on the body of deceased-Roshan, as there
was no reliable and corroborative piece of evidence –
either circumstantial evidence, or evidence of an eye
witness, as they have turned hostile, and therefore,
the prosecution story of pouring kerosene was not
believed. Further, it was found and observed by the
trial Court that there was no case so far as Section
498A IPC made out, and hence, the presumption under
Section 113A of the Indian Evidence Act was ruled out
against the accused. The Court below further observed
that though there are three dying declarations
implicating the accused, the deceased failed to
disclose her mind before the Doctor who initially
examined her for medical treatment, and therefore,
even if one of the dying declarations are taken by the
Executive Magistrate, the same loses its significance,
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as it is inconsistent with the first version. It was also
found by the learned trial Judge that the prosecution
has not proved the guilt beyond reasonable doubt, as
there was no smell of kerosene on the deceased and
there is no corroboration of evidence to the dying
declaration taken by the Magistrate. It was found and
observed by the learned trial Judge that the patient
may or may not be in the state of mental orientation
to give statement and looking to the medical evidence
and as far as oral dying declarations made before PW-
4 at Exh. 35; PW-2 : Doctor at Exh. 76; PSO [in the
form of complaint] at Exh. 42 and PW-1 Executive
Magistrate [Exh. 25] respectively are concerned, they
are inconsistent with other evidence on record, and
therefore, they cannot be acted upon without any
corroboration, and non examination of material
independent witness would render the prosecution
version atleast not free from reasonable doubt, and
therefore, upon appreciation of evidence, the learned
trial Judge observed that the evidence adduced on
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record cannot be said to have conclusively established
the guilt against any of the accused persons beyond
reasonable doubt, and therefore, the Court below held
that they are entitled to be benefit of doubt, as the
prosecution has failed to bring home the charge
against the accused persons beyond any reasonable
doubt.
Submissions
Assailing the impugned judgment and order of
acquittal, Ms. Jirga Jhaveri, learned Addl. Public
Prosecutor has urged that the learned trial Judge has
erred in not believing the dying declaration in the form
of an FIR, wherein, names of all the accused persons
were revealed. She further urged that even the
learned trial Judge has failed to believe the dying
declaration recorded by the Executive Magistrate,
which was recorded within a short period of two hours
after the deceased was admitted in a hospital.
Learned APP has urged that the Court below has erred
in properly appreciating the entire evidences – ocular
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as well as documentary, which has resulted into gross
miscarriage of justice, and therefore, the entire
judgment and order of acquittal being erroneous,
improper and illegal, the same requires to be quashed
and set-aside.
Ms. Jirga Jhaveri, learned APP appearing on behalf
of the appellant-State has taken this Court through the
relevant evidence on the record; more particularly,
oral depositions of PW-4 : Haji Jasub [Exh. 35]; PW-2
Doctor Masrani in the form of a history [Exh. 27]; PW-9
: PSO Shri Mahendrasinh Chauhan [recorded in the
form of a complaint at Exh. 42]; PW-1 Magistrate
[recorded in the form of Dying Declaration] at Exh. 25
and lastly before PW-3 : Ishak Suleman-father of the
deceased before whom deceased Roshan made
statement as to the occurrence of incident, and other
dying declarations made before the Executive
Magistrate to contend that by adducing necessary
evidence, the prosecution had proved that the incident
took place on 31st August 1992 at 22:00 hours; that
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the common object of the accused was to commit
murder of victim-Roshan; that in further of the
common object, the child accused-Guddy poured
kerosene on the deceased and whereas, the accused
nos. 1 3 put her on fire and thereby the victim-
Roshan sustained fatal burn injuries. That, the injured-
Roshan was conscious and well oriented. That,
considering the details of all these dying declarations,
there being no history of unconsciousness, the trial
Judge ought to have convicted the accused, as the
declarations made by the deceased-Roshanben are
trustworthy and no corroboration is required.
Lastly, learned APP Ms. Jirga Jhaveri appearing for
the appellant-State urged that the impugned judgment
and order may be reversed by convicting the accused
persons for the offence for which, they are charged
with and they be suitably punished.
Per contra, learned advocate Shri Pratik Barot
appearing on behalf of the respondents-accused, at
the outset, contended that there are in all five dying
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declarations allegedly made by the deceased-Roshan –
the first version, being one before PW-4 at Exh 35; the
second version before PW-2 : Doctor [at Exh. 27]; the
third being before PSO in the form of complaint at Exh.
42; the fourth version before the Magistrate in the
official form of “Dying Declaration” at Exh. 25 and last
version, before her father, who was examined as PW-3
at Exh. 29. Learned advocate Mr. Barot appearing for
the respondents contended that out of all these five
versions, three of them ie., [a] version given before a
person who was instrumental in taking Roshanben to
Civil Hospital at Amreli on 31st August 1992; [b] a
version before the Doctor in form of history, and lastly,
a version before her father are all very candidly
consistent on the point of deceased-Roshan having
sustained accidental burns upon her body, and
therefore, the same has acted as a major ground for
the trial Court to acquit the respondents-accused.
Pointing out infirmities in the dying declarations,
one by one, learned advocate Shri Barot took this
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Court to the Dying Declaration recorded at Exh. 25,
wherein PW-1, in his deposition at Exh. 23 has stated
that when he was on duty as Mamlatdar, Amreli he
received a Yadi from Civil Hospital [Exh. 24] and
pursuant thereof, when he reached at the Burns Ward
for recording the declaration of victim, he noticed
presence of five to six persons in the Ward. This
witness has specifically stated about absence of
Doctor, when he arrived in the Burns Ward and also
depicted about presence of relatives, who were told to
leave the place. Thus, according to the learned
advocate for the respondents, presence of relatives of
the deceased before actual recording of Dying
Declaration casts shadow upon the version to be
tutored by her near onces to see to it that the
deponent changes her initial version and implicates
maximum number of accused persons. The version
recorded in the form of dying declaration, therefore,
has rightly been disbelieved by the trial Court.
Pointing out infirmities in the second dying
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declaration recorded by PW-1 at Exh. 23, counsel for
the respondents urged that once recorded, the dying
declaration [Exh. 25] ought to have been read over to
the deponent on its completion, in consonance with
the provisions of Section 32 [1] of the Indian Evidence
Act, however, the same does not appear to have been
done in the instant case, rendering such declaration
inadmissible in evidence. Learned advocate for the
respondents contended that PW-1 at Exh. 23 also
deposes of his having visited chamber of Doctor
concerned to get his endorsement as to the physical
condition of the injured. This according to the learned
counsel is not in consonance with the manner in which
Dying Declaration is recorded, rather it appears that
there was no doctor available to certify the mental and
physical fitness of the injured-deponent and therefore,
at a belated stage, a formality of taking an
endorsement of a Doctor was completed by paying
visit to his chamber. Counsel for the respondents
urged that if the Doctor’s evidence is read in
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juxtaposition to the version of PW-1, his evidence
presents a different story to offer. This Doctor had
come up with a case that after recording Dying
Declaration, he himself had visited Emergency Ward
ie., the place at which endorsement was made by him.
Not only that, but if we look at the evidence of PW-1,
he has not referred to presence of the Doctor at the
time of recordance of Dying Declaration [Exh. 25] and
rather clearly admits that during the course of
recording the Dying Declaration, the Doctor was not
present. Learned advocate Shri Barot pointed out that
PW-1 at Exh. 23 admits of certain corrections made by
encircling a portion of document [Exh. 25] stating that
the same was done at the behest of the Doctor,
whereas for what reason the same was corrected and
at what time the corrections were made, does not
come out on record, and therefore, the very factum of
corrections being made in such a crucial document
clouds a ray of suspicion and thereby inspires no
confidence over the testimony of this witness. Learned
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advocate Shri Barot appearing for the respondents
further pointed out that PW-1 at Exh. 23 also refers to
hazy thumb impression being noticed on Exh. 25 so
also deposing about the deceased having complaining
of pain to this witness at the time of recording of
Dying Declaration, and yet, this witness did not think it
fit to call Doctor, so therefore, if during the course of
recordance of the declaration, the deceased was all
throughout and in-between complaining of severe
pain, the question which would arise is whether the
deceased was in fact in a position to give her Dying
Declaration, and if yet, what was her mental
orientation at the time of recording the declaration to
come to a conclusion that she was mentally fit to get
her version.
Pointing out infirmities in Dying Declaration
recorded by PW-9 at Exh. 42, learned advocate for the
respondents submitted that this witness-PSO in his
examination-in-chief does not refer to presence of a
Doctor at the time at which he started recording the
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complaint/dying declaration of the injured, when he
visited the Burns Ward at Civil Hospital, Amreli which
is once again a bypass to the requirement of Section
32 [1] of the Evidence Act ie., in not ascertaining the
mental and physical fitness of the declarant at the
time of recording of the complaint rather no Doctor
was consulted by this witness, who would certify the
condition of the injured at the time of recording of the
statement. This witness further deposes that when he
went inside the Burns Ward, he did not ask the Doctor
concerned as to the mental and physical condition of
injured, nor did this witness insist for presence of
Doctor at the time of recording of the complaint, which
otherwise also makes his version vulnerable. Not only
that, PW-9 also admits that though he had earlier in
point of time at Exh. 10 received a Vardhi bringing to
his notice that deceased having sustained accidental
burns, not a single question was asked by this witness
to the injured in relation to the accidental burns, and
therefore, such an action on his part is not acceptable
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in the eyes of law so also his conduct speaks volume
about in what direction, this witness wanted to drive
at. That, the husband of the deceased – Salim was
named in the last portion of the complaint so also the
thumb impression of the injured/ deceased was never
made to identify vis-a-vis in Exh. 42-complaint, and
again there was a correction made to the extent that
in the place of right hand thumb, the same was
replaced by left hand thumb impression. According to
the learned advocate for the respondents-accused
such corrections and/or interpolation in a crucial
document like complaint is not permissible in law, as it
creates doubt about the very recording of the
complaint and its complexions thereof. This witness at
Exh. 41 further deposes of presence of cluster of
persons nearby the injured, when he reached at the
Hospital, which would go to show that in fact, the
injured/deceased was tutored by the relatives to see
to it that the accused persons are anyhow arraigned in
a serious offence. Learned advocate Shri Barot for the
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respondents drew attention of this Court to page 119
to point out another infirmity in the version of PW-9 at
Exh. 41 which refers to injured/deceased having
spoken for 20 to 25 minutes. According to him, can
injured person having sustained 100% burn injuries
covering her entire body, and who was under the
influence of analgin, could have spoken for such a long
tenure. Counsel for the respondents drew our
attention to page 120 to point out that in order to
come to a definite conclusion that the injured was in a
conscious state of mind, there was no sort of
preliminary questions put to her before actual
recording took place, when this witness deposes of
injured having sustained burn injuries on her entire
mouth.
Learned advocate Shri Barot appearing on behalf
of the respondents next contended that if the
prosecution story is tested on its face value ie., all the
accused persons having poured kerosene over the
injured/deceased and they having set her ablace,
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unfortunately, if the panchnama of the body of the
accused persons is referred [Exhs. 17 18], neither
there are any visible marks of kerosene found upon
their clothes nor there is any reference to small of
kerosene in the entire Panchnama, which otherwise
also, makes the very case of prosecution without any
foundation.
Learned counsel for the respondents further
contended that as per the version of PW-3, who
happens to be the father of the deceased and PW-4
who is one, who had taken the deceased to the
Hospital, have in their examination-in-chief stated that
categorically remained unshaken or rather strict to
their version of deceased having sustained accidental
burns upon her, and therefore, as per catena of
decision on the issue as to how a hostile
witness/evidence is to be appreciated, once such
witnesses have remained consistent in their
examination-in-chief may be their turning hostile
would not harm the prosecution, but at the same time,
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whatever being deposed by the witnesses in the chief-
examination supporting either the prosecution or the
defence can be taken into consideration and
conclusion thereof be based upon the same.
On all these broad submissions made at the bar,
learned advocate Shri Pratik Barot appearing for the
respondents contended that there are serious doubts
about the manner in which the incident occurred as
well as the assailants and their participation in the
alleged offence on the basis of various versions culled
out in so-called four dying declarations on the record.
Further, Shri Barot, learned advocate for the
respondents contended that the trial Court has made
thread bare analysis of the evidence led before it and
has rightly come to a reasonable and plausible finding
of not holding the respondents-accused guilty of the
charges leveled against them.
Placing reliance upon the decisions of the Apex
Court in the cases of [a] Shaikh Bakshu Ors. vs.
State of Maharashtra, [2007] 11 SCC 269; [b]
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Surinder Kumar v. State of Haryana, 2012 [1] GLH
658; [c] Ramakant Mishra alisa Lalu v. State of
Uttar Pradesh, [2015] 8 SCC 299; [d] Selvaraj alias
Chinnapaiyan v. State, Represented by Inspector of
Police, [2015] 2 SCC 662; [e] Kanti Lal v. State of
Rajasthan, 2009 (2) GLH 688; [f] Paulmeli Anr. v.
State of Tamil Nadu, [2014] 13 SCC 90 and of this
Court in the case of State of Gujarat v. Rajesh
Nathia Chhara Ors., reported in 2015 [3] GLR
2480, learned advocate Shri Pratik Barot appearing for
the respondents lastly contended that the reasonings
assigned by the learned trial Judge cannot be said to
be either unreasonable, perverse or illegal in any
manner, and therefore, benefit of doubt given to the
respondents-accused does not call for interference in
the acquittal appeal preferred by the State.
Analysis/reasonings
In order to appreciate the rival contentions
advanced on behalf of the respective parties, we have
independently scrutinized the evidence led by the
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prosecution and examined the judgment of the trial
Court. However, before dealing with the same, it
would be apt to refer to the legal position relating to
the acceptability of dying declaration.
In Sham Shanker Kankaria v. State of
Maharashtra, reported in [2006] 13 SCC 165, the
Apex Court held that, “though a dying declaration is
entitled to great weight, it is worthwhile to note that
the accused has no power to cross examination. Such a
power is essential for eliciting the truth as an obligation
of truth could be. This is the reason, the Court also
insists that the dying declaration should be of such
nature as to inspire full confidence of the Court in its
correctness. The Court has to be on guard that the
statement of deceased was not a result of either
tutoring or prompting or a product of imagination. The
Court must be further satisfied that the deceased was
in a fit state of mind after a clear opportunity to
observe and identify the assailant. Once the Court is
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satisfied that the declaration was true and voluntary,
undoubtedly, it can base its conviction without any
further corroboration. It cannot be laid down as an
absolute rule of law that the dying declaration cannot
form the sole basis of conviction unless it is
corroborated.”
The Apex Court in the case of Surinder Kumar v.
State of Haryana [Supra] has observed and held
that, “…though there is neither rule of law nor of
prudence that dying declaration cannot be acted upon
without corroboration but the Court must be satisfied
that the dying declaration is true and voluntary and in
that event, there is no impediment in basing conviction
on it, without corroboration. It is the duty of the Court
to scrutinize the dying declaration carefully and must
ensure that the declaration is not the result of tutoring,
prompting or imagination. Where a dying declaration is
suspicious, it should not be acted upon without
corroborative evidence.”
In the case of Shaikh Bakshu Ors. v. State of
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Maharashtra [Supra], rejecting the view of the High
Court concluding that even though it is not stated in
the dying declaration, it has to be presumed that it
has been read over and explained, the Apex Court
held that the dying declaration recorded in that case
was not reliable because there was no mention that
the same was read over and explained to the
deceased.
In the case of Ramakant Mishra alias Lalu
Ors. vs. State of Uttar Pradesh [Supra], dismissing
the appeal preferred by the convict, the Apex Court
observed and held that, “..once statement is found to
be genuine, voluntary, consistent, credible and
untutored, it assumes great probative value and can
form sole basis of conviction without requiring any
corroboration.” The Court further observed that,
“..there may also be other statements of deceased,
written or verbal, such as in the form of suicidal note,
letters, communications, sign or signal, etc., but dying
declaration being made in “contemplation of death”
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enjoys higher level of credence vis-a`-vis any other
statement.”
In para 21 of its decision rendered in the case of
Kanti Lal v. State of Rajasthan, reported in 2009 [2]
GLH 688, the Apex Court has observed and held that,
“..It is well settled that one of the important tests of the
credibility of the dying declaration is that the person,
who recorded it, must be satisfied that the deceased
was in a fit state of mind. For placing implicit reliance
on dying declaration, the Court must be satisfied that
the deceased was in a fit state of mind to narrate the
correct facts of occurrence. If the capacity of the maker
of the statement to narrate the facts is found to be
impaired, such dying declaration should be rejected, as
it is highly unsafe to place reliance on it. The dying
declaration should be voluntary and should not be
prompted and physical as well as mental fitness of the
maker is to be proved by the prosecution.”
Dismissing the Appeal preferred by Paulmeli and
another, the Apex Court in the matter between
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Paulmeli Anr. vs. State of Tamil Nadu [Supra]
has held that, “..by calling into aid its vast experience
of men and matters in different cases, the Court must
evaluate entire material on the record by excluding
exaggerated version given by any witness for reason
that witnesses nowadays go on adding embellishments
to their version, perhaps for fear of their testimony
being rejected by the Court. …However, the Courts
should not disbelieve evidence of such witnesses
altogether, if they are otherwise trustworthy.”
In the matter between Selvaraj alias
Chhinnapaiyan vs. State, reported in [2015] 2 SCC
662, the Apex Court in para-19 observed and held
that, “..It is settled principle of law that benefit of
reasonable doubt is required to be given to the accused
only if the reasonable doubt emerges out from the
evidence on record. Merely for the reason that the
witnesses have turned hostile in their cross
examination, the testimony in examination-in-chief
cannot be outright discarded provided the same
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[statement in examination-in-chief supporting
prosecution] is corroborated from the other evidence
on record. In other words,if the court finds from the two
different statements made by the same accused, only
one of the two is believable, and what has been stated
in the cross examination is false, even if the witnesses
have turned hostile, the conviction can be recorded
believing the testimony given by such witnesses in the
examination-in-chief. However, such evidence is
required to be examined with great caution.”
In the case of State of Gujarat v. Rajesh
Nathia Chhara Ors., reported in 2015 [3] GLR
2480, the Division Bench of this Court, while
confirming the acquittal has observed and held that,
“…..It is well-settled principle of law that if two views
are possible, the appellate Court should not disturb the
finding of acquittal recorded by the trial Court unless
there are compelling reasons to do so.” ….Infirmities in
the prosecution case go to the root of the matter and
strike a vital blow on the prosecution case. In such a
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case, it would not be safe to set aside the order of
acquittal, more particularly, when the evidence has not
inspired confidence of the learned trial Judge.”
Evidence
Diverting our focus on the evidence led by the
prosecution before the trial Court, in the instant case,
there are in all five dying declarations. One of these
declarations has been taken down by PW-1:
Hemantgar Dhangar Gosai, Deputy Mamlatdar
[Revenue], who in his testimony at Exh. 23, has
deposed that when he went alongwith Doctor in the
Burns Ward to draw a Dying Declaration, he was
informed that the patient was in conscious state of
mind. This witness further deposes of presence of five
to six persons in the Burns Ward, and of not reading
out version recorded by him to the injured. Not only
that, this witness has even failed to take endorsement
of the Doctor as to the state of mind/consciousness of
the patient. In the cross examination, this witness has
admitted that he has not mentioned about the fact
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that the patient was conscious and that the Doctor has
allowed him to take dying declaration and also further
admitted that during the recordance of dying
declaration, Doctor was not present there. Though,
this witness has denied that a line covering the names
of Savina and Guddy have been added afterward, but
on perusing the dying declaration, it clearly culls out
that this line appears to have been added
subsequently in small letters between the space of the
answers to the questions. Moreover, as certified by the
Doctor, the patient was having 100% burns and in
such a condition, it cannot be possible for her to give a
detailed story, instead of answering preliminary
question as to what had happened to her. Other
glaring infirmities found by the trial Court includes
encircling made in the dying declaration, use of eraser
and no identification is made by a person before
whom thumb impression/mark was made on the dying
declaration, declaring it to be Right Hand Thumb [RHT]
mark of “Roshanben Salim”. Therefore, the trial Court
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has rightly observed that when the Doctor has
certified that the right hand of the patient was burnt,
and therefore, her left hand thumb impression was
drawn on the complaint, then how her right hand
thumb mark came on the Dying Declaration. There are
inconsistencies in respect of naming the accused
persons, which have rightly been weighed to give
benefit of doubt to the accused.
Further, if we look at the testimony of PW-2 Dr.
Suryakant Maganlal Masharani, he deposes of treating
the patient on 31st August 1992, when she was
brought before him at 11:00 pm. This witness though
supports the version of prosecution of injured being
conscious, while her dying declaration was being
recorded by the Deputy Mamlatdar, however, fails to
render explanation to the correction made in dying
declaration [Exh. 25]. This witness admits that there
was no smell of kerosene on the body of the patient,
which falsifies the story of prosecution of pouring
kerosene on the body of the deceased.
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Though the prosecution has examined PW-3 :
Ishak Suleman at Exh. 29; PW-4 : Haji Jusab at Exh. 35;
PW-5 : Habib Jusab at Exh. 37; PW-6 : Iqbal Bachu at
Exh. 38; PW-7 : Basir Osman at Exh. 39 and Ibrahim
Hasan at Exh. 40, however, none of them have
supported the prosecution, and therefore, the trial
Court has rightly held that there is no circumstantial
evidence available to connect the accused with the
crime alleged. Even, Ishak Suleman [PW-3] who
happens to be the father of the deceased has not
extended support to the prosecution story, and
therefore, these witnesses have turned hostile and to
which no satisfactory explanation appears to have
been rendered by the prosecution.
If we now analyze testimony of PW-9-
Mahendrasinh Chauhan [Exh. 41], he deposes of
having recorded complaint at the Burns Ward of Civil
Hospital, when he met the injured at about 11:45 pm
on 31st August 1992, and of his taking left hand thumb
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impression/mark of the complainant, since her right
hand was completely burnt. Now, when this witness
has taken left hand thumb mark of injured Roshan on
the complaint, then certainly the suspicion drawn by
the trial Court as to how her right hand thumb mark
could have been taken on a long drawn dying
declaration appears to be correct. Moreover,
possibility of injured-deceased with 100% burns
having given long complaint also reels under
suspicion.
The version of Doctor [PW-2 at Exh. 27], who took
the second dying declaration falsifies the version
recorded in a Dying Declaration, which was recorded
by Deputy Mamlatdar, since the note at Exh. 10
clearly speaks of the Medical Officer, Amreli informing
the Police Station about admission of Roshan
Salimbhai in the hospital with burn injuries. Therefore,
presumption drawn by the trial Court that after getting
admission in the Hospital, the injured might have
given history to the Doctor that she was burnt
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accidentally cannot be found fault with. Moreover, the
version also does corroborates with the fact that there
was no smell of kerosene found on the clothes of the
deceased. The findings arrived at by the trial Court
with regard to the patient being under the influence of
Analgin and in such a condition, she might not have
been able to properly describe the incident cannot be
ruled out.
Now, if we look Exh. 36, it reveals that the
injured has narrated story before Aslam in which she
has stated of her having sustained burn injuries by
herself, and whereas, in the complaint [Exh. 42] an
attempt has been made to involve Salim and other
accused persons. Thus, there are glaring discrepancies
in the multiple dying declarations which does not
corroborate with the attending circumstances;
including the physical and mental condition of the
injured-deceased at the relevant time and medical
evidence.
It is worth noting that this is an acquittal appeal
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in which Appellate Court would be rather slow to
interfere with the order of acquittal when the
infirmities in the prosecution case go to the root of the
matter and strike a vital blow on the case and in such
a case, it would not be safe to set-aside the order of
acquittal, more particularly when the evidence has not
inspired confidence of the trial Court. It is also well
settled that even if two views are possible, the
Appellate Court shall not ordinarily interfere with the
judgment of acquittal in a routine manner, unless the
order of the trial Court is per se wrong on facts and on
law or perverse.
Conclusion
On overall re-appreciation of the evidence
available on the record, this Court is satisfied that
there is no infirmity in the reasonings given by the
learned trial Judge for acquitting the respondents-
accused.
Resultantly, for the foregoing reasons, this
Criminal Appeal preferred by the State of Gujarat
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deserves to be dismissed and is accordingly
dismissed. Since all the respondents-accused are on
bail, their bail bonds shall stand cancelled.
RP be transmitted back to the court concerned.
[SMT. ABHILASHA KUMARI, J.]
[B.N. KARIA, J.]
Prakash
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