{"id":34,"date":"2025-06-08T20:44:33","date_gmt":"2025-06-08T15:14:33","guid":{"rendered":"http:\/\/mynation.net\/docs\/koli-chunilal-savji\/"},"modified":"2025-06-08T20:44:33","modified_gmt":"2025-06-08T15:14:33","slug":"koli-chunilal-savji","status":"publish","type":"post","link":"https:\/\/mynation.net\/docs\/koli-chunilal-savji\/","title":{"rendered":"KOLI CHUNILAL SAVJI and ANR. vs STATE OF GUJARAT"},"content":{"rendered":"

Supreme Court of India<\/strong><\/p>\n

PETITIONER:KOLI CHUNILAL SAVJI & ANR.
\n\u00a0Vs.
\nRESPONDENT:STATE OF GUJARAT\n<\/p>\n

DATE OF JUDGMENT:\u00a029\/09\/1999<\/p>\n

BENCH:G.B.Pattanaik, N.Santosh Hedge, M.Srinivasan<\/p>\n

JUDGMENT:PATTANAIK, J.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0 These\u00a0\u00a0 two\u00a0 appeals\u00a0 arise\u00a0\u00a0 out\u00a0 of\u00a0 Judgment\u00a0 dated
\n21\/24.6.1996\u00a0 of\u00a0 the High Court of Gujarat at Ahmedabad\u00a0 in
\nCriminal\u00a0 Appeal\u00a0 Nos.\u00a0 236 and 105 of 1989 and\u00a0 are\u00a0 being
\ndisposed\u00a0 of\u00a0 by this common Judgment.\u00a0The\u00a0 two\u00a0 appellants
\nwere\u00a0 tried\u00a0 for having committed an offence\u00a0 under\u00a0 Section
\n302\/34\u00a0IPC\u00a0 on\u00a0 the allegation that on 28.6.84 at\u00a0 4\u00a0 A.M.,
\nwhile\u00a0 deceased\u00a0 Dhanuben was sleeping on her bed,\u00a0 the\u00a0 two
\naccused\u00a0 persons namely her husband and mother-in-law poured
\nkerosene\u00a0 and\u00a0 set\u00a0 fire\u00a0 with match box.\u00a0\u00a0 Along\u00a0 with\u00a0 the
\ndeceased, her son Ajay was also there and both, the deceased
\nand\u00a0 Ajay\u00a0 were burnt.\u00a0They were taken to the hospital\u00a0 for
\ntreatment.\u00a0\u00a0 In the hospital, Police recorded the\u00a0 statement
\nof\u00a0 Dhanuben\u00a0 which\u00a0 was treated as F.I.R.\u00a0 and\u00a0 then\u00a0 after
\nregistering\u00a0 the\u00a0 case,\u00a0 investigation\u00a0 started.\u00a0\u00a0 In\u00a0 the
\nhospital,\u00a0 both\u00a0 Dhanuben and her son Ajay died and as\u00a0such
\nthe accused persons stood charged for offence under Sections
\n498A\u00a0 and\u00a0 302\/34 of the IPC.\u00a0 Apart from the\u00a0 statement\u00a0 by
\ndeceased\u00a0 Dhanuben to PW 14, which was treated as F.I.R.,\u00a0 a
\nMagistrate\u00a0 also recorded her statement which was treated as
\na\u00a0 dying\u00a0 declaration.\u00a0 On\u00a0\u00a0 scrutiny\u00a0of\u00a0 the\u00a0 prosecution
\nevidence,\u00a0 the learned Sessions Judge did not rely upon\u00a0 the
\ndying\u00a0 declaration made by the deceased Dhanuben and in\u00a0 the
\nabsence\u00a0 of\u00a0 any\u00a0 other\u00a0 evidence\u00a0 to\u00a0 connect\u00a0the\u00a0 accused
\nappellants\u00a0 with the murder of the deceased, acquitted\u00a0them
\nof\u00a0 the\u00a0 charge\u00a0 under\u00a0Section\u00a0 302\/34\u00a0 IPC.\u00a0The\u00a0 learned
\nSessions\u00a0 Judge\u00a0 however\u00a0 came to the\u00a0 conclusion\u00a0 that\u00a0 the
\noffence\u00a0 under\u00a0Section\u00a0 498A has\u00a0 been\u00a0 established\u00a0 beyond
\nreasonable\u00a0 doubt and as such convicted them under the\u00a0said
\nSection\u00a0 and sentenced them to rigorous imprisonment for two
\nyears and imposed a penalty of Rs.250\/-, in default, further
\nimprisonment for two months.\u00a0 The State of Gujarat preferred
\nan\u00a0 appeal\u00a0 against the acquittal of the accused persons\u00a0 of
\nthe\u00a0 charge under Section 302\/34 IPC and the accused persons
\npreferred\u00a0 appeal\u00a0 against\u00a0 their conviction\u00a0 under\u00a0 Section
\n498A.\u00a0 The High Court by the impugned Judgment set aside the
\norder\u00a0 of acquittal, relying upon the two dying declarations
\nExh.\u00a0\u00a0 45\u00a0 and Exh.\u00a0 41 and convicted the appellants of\u00a0 the
\ncharge\u00a0under\u00a0 Section\u00a0302\/34 IPC and\u00a0States\u00a0appeal\u00a0was
\nallowed.\u00a0 The appeal filed by the accused persons, assailing
\ntheir\u00a0 conviction under Section 498A however stood dismissed
\nand\u00a0 the\u00a0 conviction\u00a0 under Section 498A\u00a0 and\u00a0 the\u00a0 sentence
\npassed\u00a0thereunder\u00a0 was maintained.\u00a0 It may be\u00a0stated\u00a0that
\nwhile\u00a0 admitting\u00a0 the appeal of the accused persons\u00a0 against
\ntheir\u00a0 conviction under Section 498A, the High Court had suo
\nmotu\u00a0 issued\u00a0 notice as to why the sentence imposed for\u00a0 the
\noffence\u00a0\u00a0 punishable\u00a0 under\u00a0 Section\u00a0\u00a0 498A\u00a0 should\u00a0 not\u00a0 be
\nenhanced.\u00a0\u00a0 But while disposing of the criminal appeals, the
\nHigh\u00a0 Court did not think it proper to enhance the\u00a0 sentence
\nand accordingly notice of enhancement stood discharged.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0 On\u00a0 the\u00a0 basis of the post-mortem report conducted\u00a0 on
\nthe\u00a0 dead\u00a0 bodies\u00a0 of\u00a0 Dhanuben and her\u00a0 son\u00a0 Ajay\u00a0 and\u00a0 the
\nevidence\u00a0 of doctor PW9, who conducted the autopsy over\u00a0 the
\ndead\u00a0 bodies,\u00a0 the conclusion is irresistible that both\u00a0 the
\npersons\u00a0 died\u00a0 on account of burn injuries but\u00a0the\u00a0 defence
\nhowever\u00a0 raised\u00a0 a contention that the two persons\u00a0 died\u00a0 on
\naccount\u00a0 of\u00a0 suicide\u00a0 and\u00a0 the house was\u00a0 set\u00a0 fire\u00a0 by\u00a0 the
\ndeceased\u00a0 herself.\u00a0\u00a0 The\u00a0 prosecution\u00a0witnesses\u00a0 to\u00a0whom
\ndeceased\u00a0 had\u00a0 made oral dying declaration, implicating\u00a0 the
\naccused\u00a0 persons,\u00a0 did\u00a0not support the\u00a0 prosecution\u00a0 during
\ntrial\u00a0 and, therefore, with the permission of the Court\u00a0 the
\nPublic\u00a0Prosecutor\u00a0 cross-\u00a0 examined them.\u00a0 The\u00a0 High\u00a0 Court
\naccordingly,\u00a0 placed\u00a0 no reliance on their\u00a0 testimony.\u00a0 The
\nHigh\u00a0 Court\u00a0 however\u00a0 examined the\u00a0 two\u00a0 dying\u00a0declarations
\nnamely\u00a0Exh.45,\u00a0 recorded by the Sub-Inspector PW14 and\u00a0 the
\ndying\u00a0 declaration\u00a0 Exh.41, recorded by the Magistrate\u00a0PW12
\nand\u00a0\u00a0 came\u00a0 to\u00a0the\u00a0 conclusion\u00a0\u00a0 that\u00a0both\u00a0\u00a0 these\u00a0\u00a0 dying
\ndeclarations\u00a0\u00a0 are\u00a0 truthful\u00a0 and\u00a0\u00a0 voluntarily\u00a0 made\u00a0and,
\ntherefore,\u00a0 can\u00a0 safely form the basis of conviction of\u00a0 the
\naccused\u00a0\u00a0 persons\u00a0 under\u00a0 Section\u00a0\u00a0 302\/34\u00a0 IPC.\u00a0\u00a0 With\u00a0 the
\naforesaid\u00a0 conclusion\u00a0 the order of acquittal passed by\u00a0 the
\nlearned\u00a0 Sessions\u00a0 Judge of the charge under Section\u00a0 302\/34
\nwas\u00a0 set aside and the accused appellants were convicted\u00a0 of
\nthe said charge and were sentenced to imprisonment for life.
\nThe\u00a0 High Court also relying upon the dying declaration\u00a0 and
\nother\u00a0 materials,\u00a0 further came to the conclusion\u00a0 that\u00a0 the
\nprosecution\u00a0 case,\u00a0 so far as the charge under Section\u00a0498A
\nIPC\u00a0 is\u00a0 concerned, has been proved beyond reasonable\u00a0 doubt
\nand,\u00a0 therefore,\u00a0 upheld the conviction and sentence\u00a0 passed
\nthereunder by the learned Sessions Judge.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0 Mr.\u00a0\u00a0 Keshwani, the learned counsel appearing for\u00a0 the
\nappellants\u00a0\u00a0 argued\u00a0 with\u00a0 vehemence\u00a0\u00a0 that\u00a0 the\u00a0 two\u00a0 dying
\ndeclarations\u00a0 cannot\u00a0 be relied upon inasmuch as the\u00a0 doctor
\nwas\u00a0 not present while the dying declaration was recorded by
\nthe\u00a0 Magistrate and further, there is no endorsement by\u00a0 the
\ndoctor,\u00a0 indicating the mental condition of the deceased\u00a0 to
\nthe\u00a0 effect\u00a0 that\u00a0 she was in a fit condition\u00a0 to\u00a0 make\u00a0 the
\nstatement.\u00a0\u00a0 The learned counsel also further urged that the
\ndoctor\u00a0himself\u00a0 has\u00a0 not been examined in this\u00a0 case\u00a0 which
\nmakes\u00a0 the\u00a0 position\u00a0 worse.\u00a0\u00a0 Mr.\u00a0\u00a0 Keshwani\u00a0 also\u00a0 made\u00a0 a
\nsubmission\u00a0 that\u00a0 the\u00a0 deceased was surrounded\u00a0by\u00a0 her\u00a0 own
\nrelations\u00a0 before the dying declaration was recorded by\u00a0 the
\nMagistrate\u00a0 and\u00a0 as\u00a0 such had sufficient opportunity\u00a0 to\u00a0 be
\ntutored\u00a0 and consequently the dying declaration recorded\u00a0 by
\nthe\u00a0 Magistrate\u00a0 becomes\u00a0 vitiated.\u00a0\u00a0\u00a0 Mr.\u00a0\u00a0 Keshwani\u00a0also
\nsubmitted\u00a0 that\u00a0 the incident having taken place at\u00a0 4\u00a0A.M.
\nand\u00a0 the\u00a0 dying\u00a0 declaration\u00a0 having been\u00a0 recorded\u00a0 by\u00a0 the
\nMagistrate at 9 A.M., five hours after the occurrence, there
\nhas\u00a0 been\u00a0 gross\u00a0 delay which makes\u00a0 the\u00a0 dying\u00a0 declaration
\ndoubtful\u00a0 and\u00a0 as such should not have been\u00a0 accepted.\u00a0 Mr.
\nKeshwani\u00a0 lastly\u00a0 submitted that the learned Sessions\u00a0 Judge
\nhaving\u00a0recorded an order of acquittal, the same should\u00a0 not
\nhave\u00a0 been\u00a0 interfered\u00a0with\u00a0 by\u00a0\u00a0 the\u00a0High\u00a0 Court\u00a0 without
\njustifiable reasons and on this score also the conviction of
\nthe appellants under Section 302\/34 IPC cannot be sustained.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0 The\u00a0 learned\u00a0 counsel\u00a0 appearing\u00a0for\u00a0 the\u00a0 respondent
\nState,\u00a0 on\u00a0 the\u00a0 other\u00a0 hand\u00a0submitted\u00a0 that\u00a0 the\u00a0\u00a0 dying
\ndeclaration\u00a0 which has been relied upon by the High Court in
\nthe\u00a0 facts\u00a0 and circumstances, has been rightly held\u00a0 to\u00a0 be
\ntruthful\u00a0 and voluntary one and, therefore, in law, can form
\nthe\u00a0 sole\u00a0 basis\u00a0 of conviction.\u00a0 She\u00a0 also\u00a0 contended\u00a0that
\nthough\u00a0endorsement of the doctor and presence of the doctor
\nis\u00a0 ordinarily looked for but merely on that score the dying
\ndeclaration\u00a0 recorded by the Magistrate cannot be held to be
\nan\u00a0 untruthful one.\u00a0 Besides, the learned counsel\u00a0 submitted
\nthat\u00a0 the\u00a0 doctor\u00a0 did\u00a0make an entry in\u00a0 the\u00a0 Police\u00a0 yadi,
\nindicating\u00a0 that the deceased was in a fit condition to make
\nany\u00a0 statement and it is he, who took the Magistrate to\u00a0 the
\ndeceased\u00a0 and non-endorsement by the doctor on the statement
\nrecorded\u00a0 by\u00a0 the Magistrate cannot be held to be fatal\u00a0 nor
\ncan\u00a0 any\u00a0 doubt\u00a0 arise on that score.\u00a0 The\u00a0 learned\u00a0 counsel
\nfurther\u00a0 contended that the power of the High Court\u00a0 against
\nan\u00a0 order\u00a0 of acquittal is the same as against an\u00a0 order\u00a0 of
\nconviction and while setting aside an order of acquittal, it
\nis\u00a0 necessary\u00a0 for\u00a0 the\u00a0 Appellate\u00a0 Court\u00a0 to\u00a0 look\u00a0 at\u00a0 the
\nreasoning\u00a0 given by the trial Judge and be satisfied whether
\nthose\u00a0 reasoning are just and proper or not.\u00a0 The\u00a0 reasoning
\ngiven by the learned Sessions Judge to discard the two dying
\ndeclarations\u00a0 having\u00a0 been\u00a0 found by the High\u00a0 Court\u00a0 to\u00a0 be
\nwholly unreasonable and, therefore, the High Court was fully
\nentitled\u00a0 to\u00a0 interfere with the conclusion of\u00a0the\u00a0 learned
\nSessions\u00a0 Judge\u00a0 and no infirmity can be found out\u00a0 on\u00a0that
\nscore.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0 Coming\u00a0 to the affirmation of conviction under Section
\n498A,\u00a0 while\u00a0 Mr.\u00a0\u00a0 Keshwani,\u00a0appearing\u00a0 for\u00a0the\u00a0 accused
\nappellants\u00a0 submitted\u00a0 that\u00a0 on this\u00a0 scanty\u00a0 evidence,\u00a0 the
\nCourts\u00a0could not have convicted the accused persons of\u00a0 the
\nsaid\u00a0 charges,\u00a0the\u00a0 learned\u00a0\u00a0 counsel\u00a0for\u00a0 the\u00a0 respondent
\nsubmitted\u00a0 that\u00a0 both the Courts have analysed the\u00a0 evidence
\nfully\u00a0 and\u00a0 having found that the charge under Section\u00a0498A
\nIPC\u00a0 has\u00a0 been proved beyond reasonable doubt,\u00a0question\u00a0 of
\ninterfering with the said conviction does not arise.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0 In\u00a0 view of the rival submissions made at the Bar, two
\nquestions\u00a0 really arise for our consideration.\u00a0(1)\u00a0 Whether
\nthe\u00a0 two\u00a0 dying\u00a0 declarations\u00a0 can be held to\u00a0 be\u00a0 true\u00a0 and
\nvoluntary\u00a0 and\u00a0can be relied upon or can be\u00a0 excluded\u00a0from
\nconsideration\u00a0 for\u00a0 the\u00a0 infirmities\u00a0\u00a0 pointed\u00a0out\u00a0 by\u00a0 Mr.
\nKeshwani,\u00a0 appearing\u00a0 for the appellants.\u00a0 (2)\u00a0Whether\u00a0 the
\nHigh Court exceeded its jurisdiction in interfering with the
\norder of acquittal, recorded by the learned Sessions Judge.
\n\u00a0\u00a0\u00a0\u00a0\u00a0 Coming\u00a0 to the first question, the answer to the\u00a0same
\nwould\u00a0 depend upon the correctness of the submission of\u00a0 Mr.
\nKeshwani,\u00a0 that in the absence of doctor while recording the
\ndying\u00a0 declaration, the said declaration loses its value and
\ncannot be accepted.\u00a0 Mr.\u00a0 Keshwani in this connection relies
\nupon\u00a0 the decision of this Court in the case of Maniram\u00a0 vs.
\nState\u00a0 of Madhya Pradesh, AIR 1994 SC 840.\u00a0 In the aforesaid
\ncase,\u00a0 no doubt this Court has held that when the\u00a0 declarant
\nwas\u00a0 in\u00a0 the hospital itself, it was the duty of the\u00a0 person
\nwho\u00a0 recorded the dying declaration to do so in the presence
\nof\u00a0 the doctor and after duly being certified by the\u00a0 doctor
\nthat\u00a0 the declarant was conscious and in senses and was in a
\nfit condition to make the declaration.\u00a0In the said case the
\nCourt\u00a0 also\u00a0 thought\u00a0 it\u00a0 unsafe\u00a0 to\u00a0 rely\u00a0 upon\u00a0 the\u00a0 dying
\ndeclaration on account of aforesaid infirmity and interfered
\nwith\u00a0 the\u00a0 Judgment\u00a0 of the High Court.\u00a0 But\u00a0 the\u00a0 aforesaid
\nrequirements\u00a0 are\u00a0 mere a rule of prudence and the\u00a0 ultimate
\ntest\u00a0 is\u00a0 whether the dying declaration can be held to be\u00a0 a
\ntruthful\u00a0 one\u00a0 and voluntarily given.\u00a0 It is no\u00a0 doubt\u00a0true
\nthat before recording the declaration, the concerned officer
\nmust\u00a0 find that the declarant was in a fit condition to make
\nthe\u00a0 statement\u00a0in question.\u00a0 In Ravi Chander and Ors.\u00a0 vs.
\nState\u00a0 of Punjab, 1998 (9) SCC 303, this Court has held that
\nfor not examining the doctor, the dying declaration recorded
\nby the Executive Magistrate and the dying declaration orally
\nmade\u00a0 need not be doubted.\u00a0 The Court further observed\u00a0that
\nthe Executive Magistrate is a disinterested witness and is a
\nresponsible officer and there is no circumstance or material
\non\u00a0 record to suspect that the Executive Magistrate had\u00a0 any
\nanimus\u00a0against\u00a0 the\u00a0 accused or in any\u00a0 way\u00a0 interested\u00a0 in
\nfabricating\u00a0 the\u00a0 dying\u00a0 declaration\u00a0\u00a0 and,\u00a0 therefore,\u00a0 the
\nquestion of genuineness of the dying declaration recorded by
\nthe\u00a0 Executive Magistrate to be doubted does not arise.\u00a0\u00a0 In
\nthe\u00a0 case of Harjit Kaur vs.\u00a0 State of Punjab 1994(4)\u00a0 SCALE
\n447, this Court has examined the same question and held:<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0 ..As\u00a0 regards the condition of Parminder Kaur, the
\nwitness\u00a0 has\u00a0 stated that he had first ascertained from\u00a0 the
\ndoctor\u00a0whether\u00a0 she\u00a0 was\u00a0 in\u00a0 a fit\u00a0 condition\u00a0 to\u00a0 make\u00a0 a
\nstatement\u00a0 and\u00a0obtained\u00a0 an\u00a0 endorsement\u00a0 to\u00a0 that\u00a0 effect.
\nMerely\u00a0because\u00a0 that endorsement was made not on the\u00a0 Dying
\nDeclaration\u00a0 itself\u00a0 but on the application, that would\u00a0 not
\nrender the Dying Declaration suspicious in any manner.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0 In\u00a0 view of the aforesaid decisions of this Court,\u00a0 we
\nare\u00a0 unable\u00a0 to accept the submission of Mr.\u00a0 Keshwani\u00a0that
\nthe\u00a0 two\u00a0 dying\u00a0 declarations cannot be relied upon\u00a0 as\u00a0 the
\ndoctor has not been examined and the doctor has not made any
\nendorsement\u00a0 on\u00a0 the dying declaration.\u00a0 With regard to\u00a0 the
\ncondition\u00a0 of the deceased, the Magistrate who recorded\u00a0 the
\ndying\u00a0 declaration has been examined as a witness.\u00a0 She\u00a0 has
\ncategorically\u00a0 stated\u00a0 in her evidence that as soon\u00a0 as\u00a0 she
\nreached\u00a0 the\u00a0 hospital in the Surgical Ward of Dr.\u00a0\u00a0 Shukla,
\nshe told the doctor on duty that she is required to take the
\nstatement\u00a0 of Dhanuben and she showed the doctor the\u00a0 Police
\nyadi.\u00a0The doctor then introduced her to Dhanuben and\u00a0when
\nshe\u00a0 asked\u00a0 the doctor about the condition of Dhanuben,\u00a0 the
\nsaid\u00a0 doctor\u00a0 categorically\u00a0 stated that Dhanuben was\u00a0 in\u00a0 a
\nconscious\u00a0 condition.\u00a0 It further appears from her\u00a0 evidence
\nthat\u00a0 though\u00a0 there\u00a0 has been no endorsement\u00a0 on\u00a0 the\u00a0 dying
\ndeclaration\u00a0 recorded\u00a0 by the Magistrate with regard to\u00a0 the
\ncondition\u00a0 of the patient but there has been an\u00a0 endorsement
\non\u00a0\u00a0 Police\u00a0 yadi,\u00a0 indicating\u00a0 that\u00a0 Dhanuben\u00a0 was\u00a0\u00a0 fully
\nconscious.\u00a0\u00a0 In\u00a0 view\u00a0 of\u00a0 the\u00a0aforesaid\u00a0 evidence\u00a0 of\u00a0 the
\nMagistrate\u00a0 and in view of the endorsement of doctor on\u00a0 the
\nPolice yadi and no reason having been ascribed as to why the
\nMagistrate\u00a0 would\u00a0 try\u00a0to help the prosecution, we\u00a0 see\u00a0 no
\njustification\u00a0 in\u00a0 the\u00a0comments of Mr.\u00a0 Keshwani\u00a0 that\u00a0 the
\ndying\u00a0 declaration should not be relied upon in the\u00a0 absence
\nof\u00a0 the\u00a0 endorsement\u00a0 of\u00a0 the\u00a0doctor\u00a0thereon.\u00a0\u00a0 In\u00a0this
\nparticular\u00a0 case, the police also took the statement of\u00a0 the
\ndeceased\u00a0 which\u00a0 was treated as F.I.R., and the same can\u00a0 be
\ntreated\u00a0 as\u00a0 dying declaration.\u00a0 The two dying\u00a0declarations
\nmade\u00a0 by the deceased at two different point of time to\u00a0 two
\ndifferent\u00a0 persons,\u00a0 corroborate each other and there is\u00a0 no
\ninconsistency\u00a0 in those two declarations made.\u00a0In this view
\nof\u00a0 the\u00a0 matter,\u00a0 we\u00a0 have\u00a0 no hesitation\u00a0 to\u00a0 come\u00a0 to\u00a0 the
\nconclusion that the two dying declarations made are truthful
\nand voluntary ones and can be relied upon by the prosecution
\nin\u00a0 bringing home the charge against the accused persons and
\nthe\u00a0 prosecution case must be held to have been\u00a0 established
\nbeyond\u00a0 reasonable\u00a0 doubt.\u00a0\u00a0 Consequently,\u00a0\u00a0 we\u00a0\u00a0 have\u00a0\u00a0 no
\nhesitation\u00a0\u00a0 in\u00a0 rejecting\u00a0 the\u00a0\u00a0 first\u00a0 submission\u00a0 of\u00a0 Mr.
\nKeshwani.\u00a0\u00a0 In this connection, it may be appropriate for us
\nto\u00a0 notice an ancillary argument of Mr.\u00a0 Keshwani that there
\nhas\u00a0 been an inordinate delay on the part of the\u00a0 Magistrate
\nto\u00a0 record\u00a0 the dying declaration and, therefore,\u00a0 the\u00a0same
\nshould\u00a0not\u00a0 be accepted.\u00a0 As we find from the records,\u00a0 the
\nincident\u00a0 took place at 4 A.M.\u00a0and the Magistrate\u00a0 recorded
\nthe\u00a0 dying declaration at 9 A.M., in our opinion, it\u00a0 cannot
\nbe said that there has been an inordinate delay in recording
\nthe statement of the deceased.\u00a0Mr.\u00a0 Keshwani had also urged
\nthat when the Magistrate recorded the dying declaration, the
\ndeceased\u00a0\u00a0 had\u00a0been\u00a0 surrounded\u00a0 by\u00a0 her\u00a0\u00a0 relations\u00a0and,
\ntherefore,\u00a0 it\u00a0can\u00a0 be assumed that the\u00a0 deceased\u00a0 had\u00a0 the
\nopportunity of being tutored.\u00a0 But we fail to understand how
\nthis\u00a0 argument\u00a0is advanced inasmuch as there is no iota\u00a0 of
\nevidence that by the time the Executive Magistrate went, the
\ndeceased\u00a0 was surrounded by any of her relations.\u00a0 No\u00a0 doubt
\nthe\u00a0 Magistrate herself has said that three or four\u00a0 persons
\nwere\u00a0 there\u00a0 near the deceased whom she asked to go out\u00a0 but
\nthat\u00a0 they\u00a0 were the relations of the deceased, there is\u00a0 no
\nmaterial\u00a0 on\u00a0 record.\u00a0 We, therefore, have no hesitation\u00a0 to
\nreject the said submission of Mr.\u00a0 Keshwani.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0 Coming\u00a0 now\u00a0 to the second question, the law\u00a0 is\u00a0well
\nsettled\u00a0 that\u00a0 the power of the High Court while sitting\u00a0 in
\nappeal\u00a0against\u00a0 an order of acquittal is the same,\u00a0 as\u00a0 the
\npower while sitting in appeal against the conviction and the
\nHigh\u00a0\u00a0 Court,\u00a0therefore\u00a0 would\u00a0 be\u00a0\u00a0 fully\u00a0\u00a0 entitled\u00a0\u00a0 to
\nre-appreciate\u00a0 the materials on record and in coming to\u00a0 its
\nown\u00a0 conclusion.\u00a0\u00a0 The\u00a0only compulsion on the part\u00a0 of\u00a0 the
\nAppellate\u00a0 Court is to bear in mind the reasons advanced\u00a0 by
\nthe learned Sessions Judge, while acquitting the accused and
\nindicate\u00a0 as to why those reasons cannot be accepted.\u00a0This
\nbeing the parameter for exercise of power while entertaining
\nan\u00a0 appeal against the order of acquittal and in view of our
\nconclusion\u00a0 and finding that the two dying declarations were
\ntruthful ones and voluntarily made, we see no infirmity with
\nthe\u00a0 impugned judgment of the High Court in setting aside an
\norder\u00a0 of\u00a0 acquittal.\u00a0 On going through the Judgment of\u00a0 the
\nSessions\u00a0 Judge,\u00a0 we\u00a0 find that the learned\u00a0 Sessions\u00a0 Judge
\nerroneously excluded the two dying declarations from purview
\nof consideration and therefore, the High Court was justified
\nin interfering with the order of acquittal.\u00a0 If the order of
\nacquittal\u00a0 is\u00a0 based upon the grounds not\u00a0 sustainable,\u00a0 the
\nAppellate\u00a0 Court would be justified in interfering with\u00a0 the
\nsaid\u00a0 order\u00a0 of\u00a0 acquittal.\u00a0\u00a0 Consequently, we\u00a0are\u00a0 of\u00a0 the
\nopinion\u00a0 that in the facts and circumstances of the\u00a0 present
\ncase, the High Court was fully justified in interfering with
\nthe order of acquittal recorded by the Sessions Judge and as
\nsuch\u00a0 the\u00a0 conviction of the appellant under Section\u00a0 302\/34
\nIPC\u00a0 is unassailable.\u00a0 Coming to the question of\u00a0 conviction
\nunder\u00a0 Section\u00a0498A\u00a0 IPC, as has been stated\u00a0 earlier,\u00a0 the
\nlearned\u00a0 Sessions Judge also convicted the appellant of\u00a0 the
\nsaid\u00a0 charge\u00a0 and\u00a0 the High Court\u00a0 on\u00a0 re-appreciation,\u00a0 has
\naffirmed\u00a0 the conviction and sentence passed thereunder\u00a0 and
\nnothing\u00a0 has\u00a0 been brought to our notice to take a\u00a0 contrary
\nview.\u00a0In the net result, therefore, these appeals fail and
\nare dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"

Supreme Court of India PETITIONER:KOLI CHUNILAL SAVJI & ANR. \u00a0Vs. RESPONDENT:STATE OF GUJARAT DATE OF JUDGMENT:\u00a029\/09\/1999 BENCH:G.B.Pattanaik, N.Santosh Hedge, M.Srinivasan JUDGMENT:PATTANAIK, J. \u00a0\u00a0\u00a0\u00a0\u00a0 These\u00a0\u00a0 two\u00a0…<\/p>\n","protected":false},"author":1091,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_customify_content_layout":"","_customify_sidebar":"","_customify_page_header_display":"","_customify_disable_header":"","_customify_disable_header_top":"","_customify_disable_header_main":"","_customify_disable_header_bottom":"","_customify_disable_page_title":"","_customify_disable_content_vertical_padding":"","_customify_disable_footer_top":"","_customify_disable_footer_main":"","_customify_disable_footer_bottom":"","_customify_breadcrumb_display":"","_customify_header_transparent_display":"","footnotes":""},"categories":[65],"tags":[4404,15981,15983,1344,59,47557,47558,4551,15982,14193,14156,144,15542,13409,3814,4775,14203,2180],"class_list":["post-34","post","type-post","status-publish","format-standard","hentry","category-judgments","tag-acquittal","tag-anr","tag-appellate-court","tag-delay","tag-docs","tag-docs1","tag-docs2","tag-dying-declarations","tag-executive-magistrate","tag-f-i-r","tag-high-court","tag-ipc","tag-law","tag-prosecution","tag-section","tag-section-302","tag-sessions-judge","tag-supreme-court"],"_links":{"self":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/34","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/users\/1091"}],"replies":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/comments?post=34"}],"version-history":[{"count":0,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/34\/revisions"}],"wp:attachment":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/media?parent=34"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/categories?post=34"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/tags?post=34"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}