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4 Whether This Case Involves A … vs Salim Musabhai Ghanchu & on 7 December, 2017

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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