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Arifbhai Mohammedbhai Parmar vs State Of Gujarat on 6 March, 2018

R/CR.A/892/2012 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL APPEAL NO.892 of 2012

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS.JUSTICE HARSHA DEVANI

and

HONOURABLE MR.JUSTICE A.S. SUPEHIA

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 ?

ARIFBHAI MOHAMMEDBHAI PARMAR
Versus
STATE OF GUJARAT

Appearance:
MR HASMUKH R GURJAR, ADVOCATE for the appellants.
Mr.L.B. DABHI, ADDITIONAL PUBLIC PROSECUTOR for
RESPONDENT(s) No. 1.

CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA

Date : 06/03/2018

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ORAL JUDGMENT

(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)

By this appeal under section 374(2) of the Code of
Criminal Procedure, 1973 (hereinafter referred to as ‘the
Code’), the appellants (convicts) have challenged the
judgment and order dated 28th March 2012, passed by the
learned 8th Additional District and Sessions Judge, (Ad Hoc),
Vadodara in Sessions Case No.184 of 2009, whereby the
appellants herein have been convicted for the offence under
section 302 read with section 114 of the Indian Penal Code and
have been sentenced to life imprisonment and fine of
Rs.1,000/- and in default of payment of fine, to undergo further
rigorous imprisonment for two months.

2. The prosecution case, in brief, is that the informant
Afsanaben Mahammedbhai Parmar, aged 24 years, gave her
complaint before the Investigating Officer, whereafter she
passed away. As per the complaint lodged by the informant
she was residing at Sarsavni village with her father-in-law,
mother-in-law and her husband and was doing household work.
Out of the wedlock she had a two-year old daughter by the
name of Asma. On 5.7.2009 in the morning at 8:00 o’clock, the
informant’s mother-in-law, namely, Umedben started saying
that she was not cooking and in this manner picked up a
quarrel with the informant, due to which the informant told her
that she was falsely maligning her. Whereupon, there was an
of exchange of words and accused Umedben as well as the
informant’s father-in-law Mohammedbhai caught hold of the
informant, and her husband Arifbhai, poured kerosene from a

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can on her and lit a matchstick and set her ablaze, due to
which she started screaming and her sister-in-law
Mehmoodaben came there and put a quilt over her and
extinguished the flames. The informant had sustained burn
injuries all over her body, and hence, she was taken to the
Padra Government Hospital for treatment in a 108-van and
from there she was referred with a memorandum to the SSG
Hospital at Vadodara for treatment. The informant has further
stated that the accused has told her that she should not
complain against them to the police and had threatened her in
this manner. Thus, the informant was taken to the SSG
Hospital at Vadodara for treatment, where she died on
5.7.2009 while undergoing treatment. Accordingly, a first
information report, being Padra Police Station I-C.R. No.145 of
2009, came to be registered for the offences punishable under
sections 302, 498A and 114 of the Indian Penal Code.

3. Pursuant to the first information being registered the
Investigating Officer carried out investigation and upon finding
sufficient material, submitted a charge sheet in the court of
the learned Judicial Magistrate, First Class, Padra. As the case
was triable only by a Court of Sessions, it came to be
committed to the Sessions Court at Vadodara, where it came
to be registered as Sessions Case No.184 of 2009.

4. The charge came to be framed at Exhibit 4 and was read
over to the accused persons, who pleaded not guilty, and
claimed a trial.

5. Before trial court the prosecution examined, in all, twenty
witnesses and produced various documentary evidences. The

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trial court, after appreciating the evidence on record, found
that the prosecution has proved the charge under
section 302
read with
section 114 of the Indian Penal Code against both
the appellants and convicted them accordingly.

6. Mr. Hasmukh R. Gurjar, learned advocate for the
appellants invited the attention of the court to the certificate
dated 6.3.2017 issued by the In-charge Superintendent,
Vadodara Central Jail certifying that the female prisoner
Umedben, wife of Mohammedbhai Parmar has been given
benefit of State pardon and has been ordered to be released
from jail and has accordingly been released with effect from
27.1.2017.

7. The learned advocate for the appellants took the court
through the testimonies of the witnesses at length and in great
detail. It was submitted that the prosecution case is based on
the dying declarations of the deceased, which is stated to have
been recorded by the Executive Magistrate and the
Investigating Officer. It was submitted that this is a case where
there are multiple dying declarations which are contradictory
to each other. Reference was made to the testimony of PW 13
Dr. Hitesh Vinodbhai Panchiwala, to point out that before the
said Medical Officer, the deceased had given history to the
effect that at 8:00 o’clock in the morning, while she was
making tea, while filling kerosene in the stove, she had
sustained burns. Reference was made to the history recorded
in the medical case papers, wherein history recorded is
“accidental flame burns while refilling kerosene in stove while
making tea on 5.7.2009 at 8:00 A.M. at her home”. It was
submitted that therefore, the first version given by the

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deceased was that she had sustained burns accidentally. It
was submitted that later on after her family members, namely,
her father, mother and other relatives came to the hospital,
under the effect of tutoring, she had changed her version and
implicated the present appellants.

7.1 Referring to the dying declaration recorded by PW 12
Jitendrasinh Dolatsinh Desai, the Special Executive Magistrate,
it was pointed out that the same bears the thumb impression
of the right thumb of the deceased. It was submitted that prior
to recording the statement, no opinion of the Medical Officer
had been obtained as to whether the patient was conscious
and in a fit state of mind for recording her dying declaration.
Referring to the testimonies of different witnesses it was
pointed out that the deceased had bandages all over her body
and, therefore, it was not possible for her to put her thumb
impression on the dying declaration. Reference was made to
the testimony of PW 7 Dr. Vaishakhi Yashwantray Shukla to
point out that the said witness, in her cross-examination, has
admitted that in the present case it was not possible to obtain
the thumb impression of the patient, but it was possible to
obtain a footprint. It was submitted that since the patient was
not in a position to put her thumb impression, the thumb
impression on the dying declaration is not of the patient and is
somebody else’s thumb impression. It was submitted that
therefore, the prosecution has failed to prove that the dying
declaration has been given by the deceased.

7.2 It was submitted that considering the entire oral and
documentary evidence and admitted facts, the case rests upon
the circumstantial evidence and that the chain of

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circumstances must be proved. Referring to the testimony of
PW 11 Anwarkhan Akbarkhan Pathan it was pointed out that
this witness has deposed that the police had orally examined
deceased Afsana at the Padra Hospital at which point of time
he was present there. At that time she had said that when she
went to take the can, kerosene was spilled and thereafter
there were flames and her clothes caught fire. It was
submitted that out of the four dying declarations given by the
deceased, three are in favour of the accused. All the three
dying declarations were given by the victim before the arrival
of her father, mother and other relatives. It was submitted that
therefore, the credibility of the four dying declarations has to
be evaluated keeping this in mind. It was submitted that the
Executive Magistrate has not obtained certificate of fitness
from the doctor as to whether the patient is capable of
speaking and mentally fit to give her statement. Referring to
the testimony of PW 7 Dr. Vaishaki Yashwantray Shukla, it was
pointed out that the witness has admitted that the victim had
sustained injuries over her lips and any person with injury on
the lips would not be able to speak clearly. It was further
submitted that two of the witnesses, who are relatives of the
deceased have also stated that she could not speak clearly.
Therefore, the dying declaration is suspicious and cannot be
relied upon.

7.3 It was submitted that in this case no independent witness
has been examined. There is no eye witness to the incident. All
closely related witnesses have supported the case and their
evidence cannot be relied upon. It was submitted that in a
case of multiple dying declarations, scrutiny has to be made as
to which dying declaration is credible. Referring to the

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testimony of PW 4 Ahmedbhai Hussainbhai Shaikh, the father
of the deceased, it was pointed out that the witness has, in his
cross-examination, stated that he was at the hospital for the
entire day. Other than policemen, the District Magistrate and
the Mamlatdar had come to the hospital. It was pointed that
the witness has denied that when the District Magistrate came,
he had stated the facts regarding how the incident of his
daughter had taken place. He has stated that he (the District
Magistrate) had only asked as to whose daughter she was. It
was pointed that from the testimony of the said witness it has
further come out that at the time when District Magistrate
arrived, he was near his daughter’s bed. At that time he, his
wife, his brother-in-law and others were also present near the
bed. The Magistrate came and talked with his brother-in-law
and after putting queries to him, he had left. He has further
admitted that after the Magistrate asked questions to his
brother-in-law near the bed and left, the police were present
there and that the Magistrate had not put any questions to
Afsana. It was submitted that from the testimony of this
witness it is clear that no dying declaration had been recorded
by the Executive Magistrate and that he had not asked Afsana
any questions.

7.4 Referring to the testimony of the medical witnesses
together with the medical case papers, it was pointed out that
the deceased had sustained 87% to 95% burns, and hence,
she would not be in a fit state of mind to give her dying
declaration. Under the circumstances, in the absence of any
certification by the Medical Officer regarding the deceased
being conscious and in a fit state of mind to give her
statement, the dying declaration does not deserve to be

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accepted.

7.5 In support of his submission the learned advocate placed
reliance upon the decision of the Supreme Court in the case of
S. Panneerselvam v. State of Tamil Nadu, (2008) 17 SCC
190, for the proposition that though a dying declaration is
entitled to great weight, the accused has no power of cross-
examination. Such a power is essential for eliciting the truth as
an obligation of oath 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 the deceased
was not as 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. Where there are more than
one statements in the nature of dying declaration, the one first
in point of time must be preferred.

7.6 Reliance was also placed upon the decision of the
Supreme Court in the case of
Surinder Kumar v. State of
Haryana, (2011) 10 SCC 173, wherein the court has reiterated
the principles governing dying declarations. The court held
that acceptability of the alleged dying declaration in the
particular case has to be considered. If after careful scrutiny,
the court is satisfied that it is free from any effort to induce the
deceased to make a false statement and if it is coherent and
consistent, there shall be no legal impediment to make it a
basis of conviction, even if there is no corroboration.

7.7 The decision of the Supreme Court in the case of State

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of Maharashtra v. Hemant Kawadu Chauriwal, (2015) 17
SCC 598, was cited for the proposition that it is settled law that
dying declaration can be the sole basis of conviction and it
does not require any corroboration. But it is equally true that
dying declaration goes against the cardinal principle of law
that “evidence must be direct”. Thus, dying declaration must
be judged and appreciated in light of the surrounding
circumstances and its weight determined by reference to the
principle governing the weighing of evidence. In the facts of
the said case, the Naib Tahsildar had deposed before the court
that fitness certificate as to mental capacity of the deceased
was taken from the doctor. However, the certificate nowhere
stated that the deceased was in a fit and stable mental
condition at the time of making the statement. The court held
that dying declaration had not been proved.

7.8 Reliance was also placed upon the decision of this court
in the case of
State of Gujarat v. Himatbhai Rambhai
Vaghsia and others, 2013 (3) GLR 2528, wherein the trial
court had found that the dying declaration could not be relied
upon as the testimony of the Executive Magistrate revealed
that he had not ascertained whether the deceased was in a fit
state of mind at the time of its recording. As per the medical
papers, the deceased was brought to the hospital with 100%
first, second and third degree burns. In the original record,
there was a thumb impression of the deceased which was
stated to be the right thumb impression, whereas in the
inquest panchnama it was stated that both the hands and legs
of the deceased were bandaged and there were bandages
from the neck to the waist of the deceased and there was no
mention in the inquest panchnama regarding right hand thumb

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of the deceased being free of bandages nor was there any
mention of an ink mark on her right thumb. Viewed in the
background of the facts emerging from the evidence on
record, the court was of the view that the fitness of mind of the
deceased to make the dying declaration assumes great
relevance. The court observed that there was no conclusive
evidence to prove that the deceased was fully conscious or in a
fit state of mind to record the dying declaration. Considering all
the above aspects, the court found that there were serious
infirmities in the dying declaration inasmuch as there was no
certification by a doctor to the effect that the deceased was
conscious and in a fit state of mind before recording it, and
accordingly came to the conclusion that the prosecution had
failed to prove the charge beyond reasonable doubt.

7.9 In conclusion, it was submitted that having regard to the
overall evidence which has come on record this is a good case
for acquittal. It was further pointed out that while recording
statement of the accused under
section 313 of the Code, no
question had been put to the accused regarding the dying
declaration, Exhibit 44. Lastly, it was submitted that if at all the
court comes to the conclusion that an offence has been made
out, the accused can be said to have committed the offence
relating to demand of dowry and cruelty under
section 304B of
the Indian Penal Code and therefore, conviction for a lesser
offence under
section 304B of the Indian Penal Code may be
made.

8. On the other hand, opposing the appeal, Mr. L.B. Dabhi,
learned Additional Public Prosecutor invited the attention of
the court to the medical case papers at Exhibit 48, to point out

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that the first written dying declaration regarding accidental
flame burns while refilling kerosene in stove while making tea
has come on record when the deceased was admitted by
relatives from her matrimonial side. It was submitted that the
dying declaration recorded in the medical case history is not
corroborated by the evidence on record inasmuch as the scene
of offence panchnama does not show the presence of a stove
or kerosene or articles for preparing tea. Therefore, the first
version given by the deceased was due to pressure and threat
by the accused as recorded in the first information report.
Reference was made to Exhibit 54 to point out that the
deceased has stated that her father-in-law, mother-in-law and
husband had informed her that she should not give any kind of
complaint before the police and had threatened her in this
manner.

8.1 It was submitted that apart from the written dying
declarations which have come on record, there are oral dying
declarations before the father and mother of the deceased.
Referring to the testimony of PW 4 Ahmedbhai Hussainbhai
Shaikh, it was pointed out that from the testimony of the said
witness it has come out that his daughter was speaking softly
and that she had informed him, his wife as well as his maternal
uncle and aunt that her mother-in-law, father-in-law and
husband, all three of them got together and burnt her. Her
mother-in-law and father-in-law had caught hold of her and her
husband had lit the match-stick. It was submitted that the
other witnesses, namely, PW 5 Yunusbhai Imambhai Shaikh,
PW 8 Saberabibi Mehbubbhai Malek, etc. have also narrated
similar versions.

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8.2 Reference was made to the dying declaration (Exhibit 44)
recorded by the Executive Magistrate, to submit that there is
consistency between the dying declaration recorded by the
Executive Magistrate, the first information report recorded by
PW 15 Khumansinh Nanabhai Damor and the oral dying
declarations made by the deceased.

8.3 As regards the contention raised on behalf of the
appellants that the Medical Officer had not certified that the
deceased was in a fit state of mind for recording her dying
declaration, it was submitted that a medical certificate is not
necessary if the person recording the statement finds the
patient to be in a fit state of mind. Reference was made to the
Yadi, Exhibit 43 sent by the Padra Police Station to the Medical
Officer, SSG Hospital, asking for an opinion as to whether the
patient was conscious to point out that the Medical Officer has
made an endorsement at 11:57 AM on 5.9.2009 that the
patient is conscious. Reference was made to the testimony of
PW 12 Special Executive Magistrate, to point out that the
witness, in his examination-in-chief has stated that after
talking with the patient, he had found that she was conscious
and was able to understand the questions put to her,
whereafter he has started recording her dying declaration. It
was pointed out that in his cross-examination the Executive
Magistrate has stated that while it was true that the patient
had sustained burn injuries all over her body, it was not true
that she was not speaking. The Executive Magistrate has
stated that she was speaking in a manner which one could
understand. He has further denied that the patient was in a
semi-conscious condition. It was pointed out that while the
Executive Magistrate has admitted that in the dying

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declaration – Exhibit 44, he has not mentioned that the victim
was mentally fit and was competent to give her statement, he
has voluntarily stated that he has written therein that the
patient was conscious. Reference was made to the first
information report given by the deceased as well as to the
testimony of PW 15 Khumansinh Nanabhai Damor, to point out
that the witness has deposed that when they reached the SSG
Hospital at around 1:00 o’clock in the afternoon, the victim
was fully conscious and he had also inquired from the Medical
Officer as to whether she was fully conscious and thereafter he
had put questions to her. It was submitted that therefore, from
the evidence that has come on record it is amply clear that the
deceased was conscious and in a fit state of mind for recording
her dying declaration.

8.4 As regards the contention that the deceased was not in a
position to give her thumb impression as she had sustained
burn injuries all over her body, the learned Additional Public
Prosecutor submitted that there is no reason for the Executive
Magistrate or the Deputy Superintendent of Police to create a
false record. The attention of the court was invited to the
testimony of PW 13 Dr. Hitesh Vinodbhai Panchiwala, to point
out that the doctor had described the injuries sustained by the
deceased wherein it has been stated that she had sustained
7% to 8%, 2 to 3 degree burns on her right hand. Referring to
the testimony of PW 7 Dr. Vaishakhi Yashwantray Shukla, it
was pointed out that as per the deposition given by the
witness, the deceased had sustained burn injuries all around
her hands till her palms. Reference was further made to the
testimony of PW 10 Rehanabibi Yusufbhai Shaikh, to submit
that the said witness has stated that when they reached the

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hospital, the dressing was going on, Afsana’s entire body has
been burnt and only four fingers from one hand and three
fingers from the other hand were not burnt. It was further
pointed out that as per the testimony of the said witness, when
she lifted Afsana, the skin from her body stuck to her body and
that the skin had stuck to the clothes she was wearing. It was
submitted that the testimony of this witness indicates that the
entire body of the deceased was not bandaged at the relevant
point of time. Referring to the inquest panchnama, Exhibit 34 it
was submitted that the same does not refer to any dressing on
the hands. Reference was made to the testimony of PW 12 the
Special Executive Magistrate, to point out that in his cross-
examination, the witness has stated that the parts of the body
where there were injuries had been bandaged. Reference was
also made to the testimony of PW 15 Khumansinh Nanabhai
Damor to point out that in the cross-examination of the witness
he has denied that when he reached the hospital, the entire
body of the victim was bandaged. It was submitted that
therefore, from the evidence that has come on record, there is
nothing to indicate that thumb impression of the deceased
could not be obtained.

8.5 Next, it was submitted that insofar as the veracity of the
dying declaration recorded by the Executive Magistrate is
concerned, the Executive Magistrate had been called by the
police by sending him a yadi for recording the dying
declaration, which has been proved on record. Therefore, his
presence at the hospital cannot be doubted. It was submitted
that the Deputy Superintendent of Police took the thumb
impression on the first information report and the Executive
Magistrate took the thumb impression on the dying

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declaration. Referring to the testimony of PW 12 the Special
Executive Magistrate, it was pointed out that the said witness
has stated that no one was present at that time when the
dying declaration of the patient was recorded. Reference was
made to the testimony of PW 5 Yunusbhai Imambhai Shaikh to
point out that the said witness in his cross-examination has
denied the suggestion that at the time when Afsana’s
statement was being recorded he, Afsana’s father and mother
and other family members were inside the room. The witness
has voluntarily stated that they were all standing outside the
room at a distance. It was submitted that therefore, at the time
when the statement of the victim came to be recorded, no one
else was present in the room except the Executive Magistrate.
According to the learned Additional Public Prosecutor the
testimonies of witnesses, though they are relatives, are worthy
of credence and no material contradictions have been brought
out in their testimonies.

8.6 Referring to the testimony of PW 13 Dr. Hitesh Vinodbhai
Panchiwala, it was pointed out that from the testimony of this
witness it has come on record that the relatives of the accused
were present at the time when he treated the patient at Padra.
Referring to the testimony of PW 11 Anwarkhan Akbarkhan
Pathan, it was pointed out that this witness has, in his cross
examination, stated that when Afsana was brought to the SSG
Hospital, Mehboobbhai and accused Umedben and Arifbhai had
also come and except them, no one else was there. Reference
was also made to the testimony of PW 8 Saberabibi
Mehboobbhai Malek, to point out that the said witness has
stated that the accused Arifbhai and his mother were present
at the hospital and were standing at the back. It was submitted

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that therefore, though there are multiple dying declarations,
the first dying declaration in the nature of medical history had
been given by the deceased in the presence of the accused or
their relatives. It was submitted that in the first information
report recorded by the Deputy Superintendent of Police, the
deceased has clearly stated that she was threatened by her
husband, father-in-law and mother-in-law not to complain
against them before the police. It was submitted that it was
only after her relatives came to the hospital, that the deceased
had mustered enough courage to state the correct facts before
the Executive Magistrate and the Deputy Superintendent of
Police. It was submitted that the subsequent dying
declarations recorded by the Executive Magistrate and the
Deputy Superintendent of Police are duly corroborated by the
evidence on record.

8.7 It was further submitted that it is settled legal position
that in case of multiple dying declarations, the dying
declarations which are corroborated by the evidence on record
should be accepted. In support of his submissions, the learned
Additional Public Prosecutor placed reliance upon the decision
of the Supreme Court in the case of
Pawan Kumar v. State
of Himachal Pradesh, (2017) 7 SCC 780, wherein the trial
court had not relied on the dying declaration for the reason
that the deceased was not in a position to speak and there was
no medical certificate appended as regards her fitness. The
trial court further regarded the dying declaration as
unacceptable and unreliable on the base that the deceased
had sustained 80% burn injuries. The High Court had found
that the said approach to be absolutely erroneous. The
Supreme Court held that there is no requirement of law that a

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dying declaration must necessarily be made to a magistrate
and when such statement is recorded by a magistrate there is
no specified statutory form for such recording. Consequently,
what evidential value or weight has to be attached to such
statement necessarily depends on the facts and circumstances
of each particular case. The court held that what is essentially
required is that the person, who records a dying declaration
must be satisfied that the deceased was in a fit state of mind.
Where it is proved by the testimony of the magistrate that the
declarant was fit to make the statement even without
examination by the doctor, the declaration can be acted upon
provided the court ultimately holds the same to be voluntary
and truthful. A certification by the doctor is essentially a rule of
caution and therefore, the voluntary and truthful nature of the
declaration can be established otherwise.

8.8 The decision of the Supreme Court in the case of
Ramesh v. State of Haryana, (2017) 1 SCC 529, was cited
for the proposition that in order that a dying declaration may
form the sole basis for conviction without the need for
independent corroboration it must be shown that the person
making it had the opportunity of identifying the person
implicated and is thoroughly reliable and free from blemish. If,
in the facts and circumstances of the case, it is found that the
maker of the statement was in a fit state of mind and had
voluntarily made the statement on the basis of personal
knowledge without being influenced by others and the court on
strict scrutiny finds it to be reliable, there is no rule of law or
even of prudence that such a reliable piece of evidence cannot
be acted upon unless it is corroborated. The court also held
that there is no hard-and-fast rule of universal application as to

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whether percentage of burns suffered is determinative factor
to affect credibility of dying declaration and improbability of its
recording. Much depends upon the nature of the burn, part of
the body affected by the burn, impact of the burn on the
faculties to think and convey the idea or facts coming to mind
and other relevant factors. Percentage of burns alone would
not determine the probability or otherwise of making dying
declaration. Physical state or injuries on the declarant do not
by themselves become determinative of mental fitness of the
declarant to make the statement.

8.9 Reliance was also placed on the decision of the Supreme
Court in the case of
Gulzari Lal v. State of Haryana, (2016)
4 SCC 583, wherein the court held that a valid dying
declaration may be made without obtaining a certificate of
fitness of the declarant by a Medical Officer. The court placed
reliance upon its earlier decision in the case of
Laxman v.
State of Maharashtra, that a certification by the doctor is
essentially a rule of caution and therefore, the voluntary and
truthful nature of the declaration can be established otherwise.

8.10 Reference was made to the decision of the Supreme
Court in the case of
State of Madhya Pradesh v. Dal Singh,
(2013) 14 SCC 159, wherein the court considered the question
whether 100% burnt person can make a dying declaration or
put a thumb impression. The court held that so far as the
question of thumb impression is concerned, the same depends
upon facts, as regards whether the skin of the thumb that was
placed upon the dying declaration was also burnt. The court
held that even in case of such burns in the body, the skin of a
small part of the body, i.e. of the thumb, may remain intact.

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Therefore, it is a question of fact regarding whether the skin of
the thumb had in fact been completely burnt, and if not,
whether the ridges and curves had remained intact.

8.11 Lastly, the decision of the Supreme Court in the case of
Sudhakar v. State of Madhya Pradesh, (2012) 7 SCC 569,
came to be cited, wherein the court had examined the issue
wherein the cases involving multiple dying declarations made
by the deceased; which one of various dying declarations
should be believed by the court and what are the principles
governing such determination. The court observed that this
becomes important where multiple dying declarations made by
the deceased are either contradictory or are at variance with
each other to a large extent, the test of common prudence
would be to first examine which of the dying declaration is
corroborated by other prosecution evidence. Further, the
attendant circumstances, condition of deceased at the relevant
time, medical evidence, voluntariness and genuineness of
statement made by deceased, physical and mental fitness of
deceased and possibility of deceased being tutored, are some
of the factors which would guide exercise of judicial discretion
by the court in such matters.

8.12 It was submitted that from the testimonies of the
witnesses it is evident that there was a demand of dowry; the
married life of the deceased was only two years; all the
witnesses have referred to the harassment meted out to the
deceased at the hands of the accused; therefore, the overall
evidence on record unerringly points towards the guilt of the
accused, and hence, no case is made out to warrant
interference and that the judgment and order of conviction and

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sentence passed by the trial court deserves to be confirmed.

9. In rejoinder, Mr. Gurjar, learned advocate for the
appellants, submitted that as regards consciousness of the
deceased right from the inception till the recording of the
dying declarations, in all, three written dying declarations have
come on record. It was submitted that if the deceased was
conscious from the beginning, then the first dying declaration
relating to the accidental death should be taken into
consideration as she was conscious and mentally fit to make
such statement.

9.1 It was submitted that the subsequent statements giving a
different version have been made after the relatives visited the
hospital and therefore, such dying declarations being tutored
ones, should not be believed. It was submitted that the dying
declaration Exhibit 44 came to be recorded by the Executive
Magistrate and there is no endorsement of the doctor that the
patient was in a fit state of mind to record her statement. It
was submitted that there is no certification of fitness on
record. The Executive Magistrate has obtained the thumb
impression of the deceased which is not authenticated by any
independent witness and is therefore, a suspicious document
and is a document prepared by the Investigating Officer to
implicate the accused. It was submitted that when the dying
declaration Exhibit 44 came to be recorded, the deceased has
sustained 95% to 97% burn injuries. In these circumstances,
the thumb impression could not have been clear. Therefore,
the clear impression of the thumb obtained on both the dying
declarations was not possible. It was contended that the
prosecution has failed to prove the dying declarations Exhibits

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44 and 54 and that the thumb impression on such dying
declarations are not of the deceased but of some other person.
Therefore, the entire documentary evidence, viz. Exhibits 44
and 54 are suspicious and this is a clear case of accidental
injury.

9.2 It was submitted that the presence of the accused at the
scene of the incident when the incident took place, as well as
intention, knowledge and motive have not been proved. It was
reiterated that this is a case of accidental death and that the
prosecution has failed to establish the charge against the
accused beyond reasonable doubt and that the accused
deserve to be acquitted.

10. In the backdrop of the rival contentions and the evidence
on record, the following points arise for determination by this
court.

POINTS:

I Whether non-obtaining a certificate of the Medical Officer
certifying that the patient was conscious and in a fit state
of mind to give her statement renders the dying
declarations invalid?

II Whether having regard to the nature of the burn injuries
sustained by the deceased, it was possible to obtain her
thumb impression on the dying declarations?

III Considering the extent of burn injuries sustained by the
deceased, whether she was in a position to speak so as
to be able to give her statement?

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IV As multiple dying declarations have been given by the

deceased, which dying declaration should be accepted?

FINDINGS:

11. Findings on Point I: Insofar as not obtaining a
certificate of a Medical Officer certifying that the patient is
conscious and in a fit state of mind is concerned, the legal
position in this regard is well settled. The Supreme Court in
Rambai v. State of Chhattisgarh, (2002) 8 SCC 83, held
thus:

“6. So far as the position of law in regard to the
admissibility of the dying declaration which is not
certified by the doctor, the same is now settled by a
Constitution Bench judgment of this Court reported in
Laxman vs. State of Maharashtra, wherein overruling the
judgment of this Court in
Laxmi vs. Om Prakash, it is held
that a dying declaration which does not contain a
certificate of the doctor cannot be rejected on that sole
ground so long as the person recording the dying
declaration was aware of the fact as of the condition of
the declarant to make such dying declaration. If the
person recording such dying declaration is satisfied that
the declarant is in a fit mental condition to make the
dying declaration then such dying declaration will not be
invalid solely on the ground that the same is not certified
by the doctor as to the condition of the declarant to
make the dying declaration. Be that as it may, so far as
this case is concerned, that question does not arise
because in the instant case PW.19, Dr. Ashok Sharma
though not a doctor who treated the deceased but being
the duty doctor when summoned came and examined
the deceased and noted in the dying declaration itself as
to the capacity of the deceased to make a dying
declaration. That apart from the narration of the
questions and answers in the dying declaration it is clear
that the deceased was in a fit state of mind to make the
statement. But the learned counsel for the appellant
contended that we should examine the contents of the

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dying declaration in the background of the fact that the
deceased had suffered nearly 85% burns and ever since
her admission to the hospital she was alternating
between consciousness and unconsciousness, as also
earlier attempts to record her dying declaration had
failed. Therefore the learned counsel contends that it is
not safe to place reliance on the dying declaration. We
have carefully perused the evidence of PWs.12 and 11
who recorded the dying declaration and PW.19 who is the
doctor who certified the condition of Vidya Bai from their
evidence. We are satisfied that the deceased at the time
she made the dying declaration was in a fit condition of
mind to make such statement. Having found no
discrepancy in the statement of the deceased we are
inclined to accept the same as held by the courts below.
Learned counsel then contended that from the evidence
of the husband, DW.2 himself, it is clear that the
deceased must have suffered burn injuries while she was
cooking lunch, therefore, it is not safe to rely upon the
prosecution evidence to convict the appellant. We notice
the courts below have considered this argument and
taking the preponderance of evidence and also the
factum that the husband of the deceased had resiled
from his statement made before the investigating officer
have held that it is not safe to rely upon DW.2. In such a
situation we are unable to take a contra view from the
one taken by the courts below.”

11.1 The facts of the case are required to be examined
keeping in mind the above principles. In this case, it is an
admitted position that the dying declarations do not bear the
endorsement of any Medical Officer certifying that the patient
was in a fit state of mind to be able to give her statement. The
evidence on record, is, therefore, required to be scrutinized to
ascertain whether there is any material on record to establish
that the deceased was conscious and in a fit state of mind at
the time when the dying declarations came to be recorded.

11.2 Proceeding sequentially, a yadi (Exhibit 43) came to

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be issued by the S.O., Padra Police Station, on 5.7.2009 to the
Medical Officer, S.S.G. Hospital Vadodara, inter alia, stating
that the victim, Afsana having sustained burn injuries at home,
it is necessary to record her statement, and hence, he is
requested to give his opinion as to whether the patient is
conscious. On this yadi, the concerned Medical Officer made an
endorsement at 11:57 to the effect that “the patient is
conscious”.

11.3 Thereafter, a yadi (Exhibit 42) came to be issued by
the Padra Police Station to the Executive Magistrate, Vadodara
City, inter alia, stating that Afsana has sustained burn injuries
at home and she lives with her in-laws and the span of her
married life is two years and she is under treatment at the
S.S.G. Hospital, E/4. Therefore, he is requested to come to
record her dying declaration. This yadi came to be received by
the Executive Magistrate at 12:35 hours. The dying
declaration, Exhibit 44 came to be recorded by the Executive
Magistrate at 12:45 to 13:00 hours.

11.4 PW 12 Jitendrasinh Dolatsinh Desai, the Special
Executive Magistrate, has, inter alia, deposed that when he
reached the bed in the E/4 ward, the patient Afsana was alone.
He introduced himself. The patient was able to speak and upon
making casual conversation with her, it appeared that the
patient was conscious and was able to understand the
questions put to her, and hence, he told her that her dying
declaration was to be recorded. This witness, in his cross-
examination, has admitted that in the letter Exhibit 43, all that
was stated was that the patient was conscious, no other words
were used. He has further admitted that in the letter Exhibit 43

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there is no mention as to whether the patient is competent to
give her dying declaration. The witness has further admitted
that in the dying declaration Exhibit 44, there is no mention
that the patient was mentally well and competent to give her
statement. He, however, has voluntarily stated that the words
“The patient is conscious” are written.

11.5 Thus, at 11:57 the Medical Officer has made an
endorsement that the patient is conscious. Considering the
fact that the opinion was called for the purpose of recording
the dying declaration, it can be safely assumed that the
Medical Officer found her fit to record her statement.
Nevertheless, taking the endorsement at its face value, at
11:57, the patient was conscious.

11.6 PW 13 Dr. Hitesh Vinodbhai Panchiwala, who has
treated Afsana, has deposed that the patient was able to speak
and was well oriented to the conditions around her. On
5.7.2009, he has made an endorsement that the patient is
conscious. At this juncture, the medical case papers of
deceased Afsana (Exhibit 48) may be referred to. In the
medical case papers it has been recorded thus:

“No H/O of unconsciousness”, “patient is conscious”,
“conscious”.

At 12:45 P.M.: “No H/O unconsciousness, convulsions,
vomiting”. “G/E – Patient is conscious, cooperative, well
oriented to time, place and person”.

11.7 This endorsement has also been made on 5.7.2009
at 12:45 p.m. Thus, the record as referred to hereinabove

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reveals that on 5.7.2009 at 11:57, the concerned Medical
Officer had made an endorsement that: “Patient is conscious”.
At 12.45 p.m. an endorsement has been made to the effect
that there is no history of unconsciousness and that the patient
is conscious, cooperative, well oriented to time, place and
person. The dying declaration has been recorded by the
Executive Magistrate from 12:45 to 13:00 hours, which is
during the period when according to the opinion of the Medical
Officers, the patient was conscious, cooperative and well
oriented to time, place and person. Moreover, there is also
endorsement in the medical papers made on 5.7.2009 at 7:05
p.m. to the effect that “Patient is conscious”. Thus, the medical
case record reveals that the patient (deceased Afsana) was
conscious all throughout, from the time she was admitted till at
least 7:05 p.m.

11.8 The second dying declaration which is in the nature
of a first information report has been recorded by PW 15
Khumansinh Nanabhai Damor, Deputy Superintendent of
Police, Vadodara (Rural) Division. This witness has deposed
that at the time when the Executive Magistrate recorded the
dying declaration, as their office was in Kothi compound, he
came to the S.S.G. Hospital at 1:00 o’clock in the afternoon
and as the victim was fully conscious and he had also
ascertained with the Medical Officer that she was fully
conscious, he had examined her orally. While putting questions
to her, the victim said that she wanted to give a complaint
against her husband, mother-in-law and father-in-law, and
hence, he had recorded her complaint. In his cross-
examination, the witness has admitted that when he went
there, the victim and her relatives were talking. He has further

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stated that when he reached there, the victim was speaking
clearly. In his cross-examination he has again stated that he
had asked the Medical Officer and as the patient was
conscious, he had taken steps to record the complaint. He has
denied the suggestion that when he reached there, the patient
was unconscious and that she could not speak. He has
admitted that he has recorded the complaint at 13:15 to 14:00
hours. Thus, while the dying declaration came to be recorded
at 12:45 to 13:00 hours, the first information report came to be
recorded soon thereafter at 13:15 to 14:00 hours.

11.9 Thus, insofar as certification by a Medical Officer is
concerned, at 11:57 hours, the Medical Officer has made an
endorsement on the letter Exhibit 43, that his opinion was
asked for as to whether the patient was in a fit state of mind to
record her dying declaration and that “the patient is
conscious”. Thereafter, there is an endorsement made in the
medical papers at 12:45 hours indicating that the patient is
conscious, cooperative, well oriented to time, place and
person. Within a span of less than an hour from the
certification by the Medical Officer, the Executive Magistrate
recorded the dying declaration. Though PW 12 the Special
Executive Magistrate has not obtained any endorsement from
the Medical Officer about the state of mind of the patient, he
has deposed that the patient was conscious and that after
putting questions to her he had found that she could
understand the questions and has thereafter recorded her
dying declaration. PW 15 Khumansinh Nanabhai Damor,
Deputy Superintendent of Police, who recorded the first
information report has also deposed that he had found the
victim to be fully conscious and had obtained the oral opinion

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of the Medical Officer. Therefore, both these witnesses, who
have recorded the respective dying declarations, have duly
deposed that the patient was conscious and in a fit state of
mind to give her statement. Considering the overall evidence
that had come on record in light of the principles enunciated
by the apex court in the decisions referred to hereinabove,
there is no reason to disbelieve the versions given by the
Executive Magistrate and the Deputy Superintendent of Police,
more so, as they had no axe to grind against the appellants
and had no reason to falsely implicate them by recording false
dying declarations. Both the witnesses having deposed that
the deceased was conscious and fit to make a statement, even
if the dying declarations do not bear the endorsement of the
Medical Officer certifying the state of mind of the deceased, it
would not render the said dying declarations invalid.

12. Findings on Point II: Coming to the second point, viz.
whether having regard to the nature of the burn injuries
sustained by the deceased, was it possible to obtain her thumb
impression on the dying declarations? The legal position in this
regard has been enunciated by the Supreme Court in the case
of
State of Madhya Pradesh v. Dal Singh (supra), wherein
the court has, on the question as to whether a 100% burnt
person can put a thumb impression, held thus:

“22. So far as the question of thumb impression is
concerned, the same depends upon facts, as regards
whether the skin of the thumb that was placed upon the
dying declaration was also burnt. Even in case of such
burns in the body, the skin of a small part of the body,
i.e. of the thumb, may remain intact. Therefore, it is a
question of fact regarding whether the skin of the thumb
had in fact been completely burnt, and if not, whether

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the ridges and curves had remained intact.”

12.1 The evidence on record would, therefore, be required to
be scrutinized to ascertain the nature of injuries sustained by
the deceased and as to whether the evidence on record leads
one to form the belief that Afsana could put her thumb
impression on the dying declaration and the first information
report.

12.2 Insofar as the burn injuries sustained by the deceased
are concerned, PW 11 Anwarkhan Akbarkhan Pathan has, in his
cross-examination, admitted that Afsana was not in a position
to sign or put her thumb impression. On the other hand, PW 10
Rehanabibi Yusufbhai Shaikh has deposed that Afsana has
sustained burn injuries all over her body, except four fingers on
one hand and three fingers on the other hand, which were not
burnt. Considering the issue involved, in the opinion of this
court it would be more appropriate to refer to the testimonies
of the Medical Officers in this regard. PW 7 Dr. Vaishakhi
Yashwartray Shukla has deposed that both the hands of the
deceased were burnt circumferentially till the palms. Only on
the reverse side of the hands there were nominal burns. In her
cross-examination, the witness has admitted that in this case it
was not possible to obtain finger prints and that her footprint
could have been taken. On the other hand, a perusal of the
testimony of PW 13 Dr. Hitesh Vinodbhai Panchiwala, who
treated Afsana, shows that the witness has deposed that the
injury sustained on the right hand of the patient were 7% to
8%, two to three degree burns. Thus, as rightly submitted by
the learned Additional Public Prosecutor, from the evidence
that had come on record, there is nothing to show that the

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deceased had sustained burns in a manner that she could not
put her thumb impression. Significantly, in the medical papers
also at page 213 of the paper book, the left thumb impression
of the deceased has been obtained, which makes it clear that
her hands were not burnt to such an extent that she could not
put her thumb impression. Moreover, the Executive Magistrate
and the Deputy Superintendent of Police, who recorded the
dying declaration of the deceased, were independent persons,
who did not bear any animosity against the appellants and had
no reason to falsely implicate them or to go to the extent of
fabricating false record by obtaining thumb impression of some
other person on the dying declarations. Besides, in the cross-
examination of the Executive Magistrate he has not been
sought to be confronted with the fact that the thumb
impression on the dying declaration is not of Afsana or that
Afsana’s thumb impression could not have been obtained. The
contention that in view of the extensive burn injuries sustained
by the deceased Afsana, her thumb impression could not have
been obtained on the dying declarations, therefore, does not
merit acceptance.

13. Findings on Point III: The third point that arises for
determination is having regard to the extent of burn injuries
sustained by the deceased, whether she was in a position to
speak so as to be able to give her statement.

13.1 On the question as to whether a person with 85% to 97%
burn injuries like the deceased would be able to speak, the
Supreme Court in case of
Ramesh v. State of Haryana
(supra) has held thus:

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“31. Law on the admissibility of the dying declarations is
well settled.
In Jai Karan v. State (N.C.T., Delhi), this
Court explained that a dying declaration is admissible in
evidence on the principle of necessity and can form the
basis of conviction if it is found to be reliable. In order
that a dying declaration may form the sole basis for
conviction without the need for independent
corroboration it must be shown that the person making it
had the opportunity of identifying the person implicated
and is thoroughly reliable and free from blemish. If, in the
facts and circumstances of the case, it is found that the
maker of the statement was in a fit state of mind and had
voluntarily made the statement on the basis of personal
knowledge without being influenced by others and the
court on strict scrutiny finds it to be reliable, there is no
rule of law or even of prudence that such a reliable piece
of evidence cannot be acted upon unless it is
corroborated. A dying declaration is an independent
piece of evidence like any other piece of evidence,
neither extra strong or weak, and can be acted upon
without corroboration if it is found to be otherwise true
and reliable. There is no hard and fast rule of universal
application as to whether percentage of burns suffered is
determinative factor to affect credibility of dying
declaration and improbability of its recording. Much
depends upon the nature of the burn, part of the body
affected by the burn, impact of the burn on the faculties
to think and convey the idea or facts coming to mind and
other relevant factors. Percentage of burns alone would
not determine the probability or otherwise of making
dying declaration. Physical state or injuries on the
declarant do not by themselves become determinative of
mental fitness of the declarant to make the statement
(
See Rambai v. State of Chhattisgarh.

32. It is immaterial to whom the declaration is made.
The declaration may be made to a Magistrate, to a Police
Officer, a public servant or a private person. It may be
made before the doctor; indeed, he would be the best
person to opine about the fitness of the dying man to
make the statement, and to record the statement, where
he found that life was fast ebbing out of the dying man
and there was no time to call the Police or the
Magistrate. In such a situation the Doctor would be
justified, rather duty bound, to record the dying
declaration of the dying man. At the same time, it also

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needs to be emphasized that in the instant case, dying
declaration is recorded by a competent Magistrate who
was having no animus with the accused persons. As held
in
Kushal Rao v. State of Bombay, this kind of dying
declaration would stand on a much higher footing. After
all, a competent Magistrate has no axe to grind against
the person named in the dying declaration of the victim
and in the absence of circumstances showing anything to
the contrary, he should not be disbelieved by the Court
(
See Vikas ors. v. State of Maharashtra).

33. No doubt, the victim has been brought with 100% burn
injuries. Notwithstanding, the doctor found that she was
in a conscious state of mind and was competent to give
her statement. Thus, the Magistrate had taken due
precautions and, in fact, Medical Officer remained
present when the dying declaration was being recorded.
Therefore, this dying declaration cannot be discarded
merely going by the extent of burns with which she was
suffering, particularly, when the defence has not been
able to elicit anything from the cross-examination of the
doctor that her mental faculties had totally impaired
rendering her incapable of giving a statement.”

13.2 In the case of State of M.P. v. Dal Singh (supra), the
Supreme Court, while dealing with the question as to whether
a 100% burnt person can make a dying declaration, held thus:

“14. In Mafabhai Nagarbhai Raval v. State of Gujarat,
this Court dealt with a case wherein a question arose
with respect to whether a person suffering from 99%
burn injuries could be deemed capable enough for the
purpose of making a dying declaration. The learned trial
Judge thought that the same was not at all possible, as
the victim had gone into shock after receiving such high
degree burns. He had consequently opined, that the
moment the deceased had seen the flame, she was likely
to have sustained mental shock. Development of such
shock from the very beginning, was the ground on which
the Trial Court had disbelieved the medical evidence
available. This Court then held, that the doctor who had
conducted her post-mortem was a competent person,
and had deposed in this respect. Therefore, unless there

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existed some inherent and apparent defect, the court
could not have substituted its opinion for that of the
doctor’s. Hence, in light of the facts of the case, the
dying declarations made, were found by this Court to be
worthy of reliance, as the same had been made truthfully
and voluntarily. There was no evidence on record to
suggest that the victim had provided a tutored version,
and the argument of the defence stating that the
condition of the deceased was so serious that she could
not have made such a statement was not accepted, and
the dying declarations were relied upon. A similar view
has been reiterated by this Court in
Rambai v. State of
Chhattisgarh.”

13.3 Thus, the percentage of burns alone would not determine
the probability or otherwise of making the dying declarations.
The physical state of injuries on the declarant does not by itself
become determinative of the mental fitness of the declarant to
make the statement. The court would, therefore, be required
to appreciate the evidence on record to ascertain whether the
deceased was in a position to make her statement.

13.4 The evidence on record may therefore, be adverted to.
PW 4 Ahmedbhai Hussainbhai Shaikh, the father of the
deceased, in his cross-examination, has denied the suggestion
that when they met the deceased her voice was not clear. He
has further denied the suggestion that his daughter Afsana
was not able to speak. PW 6 Hafizabanu Yunusbhai Shaikh has,
in her cross-examination, admitted that Afsana was in a semi-
conscious condition and was speaking very slowly and kept on
asking for water. She has stated that Afsana was speaking
slowly and has denied that Afsana was talking in a very soft
voice and stated that her speech was audible. PW 7 Dr.
Vaishakhi Yashwantray Shukla has, in her cross-examination,

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agreed with the suggestion that the deceased had injuries on
her lips and that if a person with injuries on the lips speaks, her
speech would not be clear. PW 8 Saberabibi Mehboobbhai
Malek, in her cross-examination has denied the suggestion that
Afsana was not able to speak and has stated that she could
speak till the last and that she was speaking in clear words. PW
11 Anwarkhan Akbarkhan Pathan has, in his cross-
examination, stated that Afsana had stopped speaking, and
hence, he did not have any occasion to talk to her. He has
further stated that Afsana was not conscious and was not
making gestures, etc. PW 12 the Special Executive Magistrate
has deposed that when he went to meet the patient Afsana,
she was able to speak and after having casual conversation
with her, he had found that the patient was conscious and was
able to understand the questions and had, therefore, informed
her that her dying declaration was to be recorded. In his cross-
examination he has admitted that the deceased had sustained
burn injuries all over her body. He has denied that she was
speaking haltingly and has stated that she was speaking the
language, which one could comprehend. He has denied that
the patient was in a semi-conscious condition.

13.5 PW 13 Dr. Hitesh Vinodbhai Panchiwala, in his cross-
examination, has stated that when the patient was brought to
him she was in a position to speak. He does not remember in
which language she spoke. He has stated that the patient was
speaking which he could hear. Whatever was stated by the
patient was written down by him in the case papers. During
the course of the cross-examination of the Medical Officer, an
article titled critical appreciation of dying declaration by Dr.
R.K. Gorea, Professor and Head, Forensic Medicine, G.M.C.

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Patiala, was shown to him. After reading it, he has stated that
in terms of what has been written, the meaning was that in
case of shock and burns, the injured person, due to impact of
burn injuries as well as due to the effect of medicines, does not
lose consciousness. In his cross-examination the witness has
not agreed with the suggestion that in case where a person
has sustained 87% to 95% burns, he loses consciousness. He
has stated that he is not in a position to categorically state as
to whether in such cases, the speech becomes unclear or
whether it is comprehensible. The witness has admitted that in
case of burn injuries, where the injured person has sustained
injuries on the lips, his voice may not become unclear.

13.6 Thus, from the testimonies of the above referred
witnesses, except for PW 11 Anwarkhan Akbarkhan Pathan, all
the witnesses have deposed that Afsana was able to speak
clearly and in a manner in which they could understand.
Insofar as PW 11 Anwarkhan Akbarkhan Pathan is concerned
he is a resident of Sarsavni village, to which the accused
persons belong and is well acquainted with them and hence,
may not have supported the prosecution case. Considering the
fact that majority of the witnesses have stated that Afsana was
in a position to speak, merely because she had sustained 85%
to 97% burn injuries, it cannot be said that she was not in a
position to make her dying declaration.

14. Findings on Point IV: In this case, it is an admitted
position that multiple dying declarations have been given by
the deceased. Initially, before the Medical Officers at the S.S.G.
Hospital, the deceased had given case history to the effect
that she had sustained accidental flame burns while refilling

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kerosene in stove while making tea on 5.7.2009 at 8.00 a.m. at
her home in Sarsavni village, taluka Padra. This case history
finds place several times in the medical case papers
maintained by the S.S.G. Hospital. PW 14 Varsanbhai
Gohaydabhai Rathwa, who was discharging duties as Duty
A.S.I. at the S.S.G. Hospital has stated that at 21:30 hours on
5.7.2009, a vardhi had been given by Medical Officer, R.P.
Gupta that a lady, by the name of Afsanabibi, wife of Arifbhai
Parmar, aged 25 years, resident of Sarsavni village, taluka
Padra, district Vadodara was working near the stove at home
at 8 o’clock. At that time upon kerosene getting spilled
accidentally, there were flames and the clothes that she was
wearing caught fire and she had sustained burn injuries over
her body and she was taken for preliminary treatment to Padra
Government Hospital and from there she had been sent by
way of referral memo for further treatment to the S.S.G.
Hospital, where she has been admitted in Ward E/4 for
treatment. During the course of treatment at 19:30 hours, the
doctor has declared her to be dead.

14.1 Thus, the first version that has come on record is that
Afsana had sustained burn injuries accidentally on account of
kerosene having been spilled from the stove and her clothes
having caught fire. PW 13 Dr. Hitesh Vinodhbhai Panchiwala, in
his cross-examination, has stated that the patient had given
history to the effect that while filling kerosene in stove while
making tea at 8:00 o’clock in the morning she had sustained
burns accidentally. However, soon thereafter, after her
relatives arrived at the hospital, the dying declaration of the
deceased came to be recorded by PW 12 Jitendrasinh Dolatsinh
Desai, the Special Executive Magistrate, before whom Afsana

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has stated that her mother-in-law and husband had sprinkled
kerosene over her and set her ablaze with a matchstick. Before
the Executive Magistrate she has stated that she holds her
mother-in-law, father-in-law and husband responsible for the
incident. She has further stated that her mother-in-law, father-
in-law and husband were present at the time of the incident.
Upon being asked whether she wanted to say anything in
particular, she had stated that she was brought in a vehicle to
the hospital, at that time she was threatened that their names,
namely, the names of her mother-in-law, father-in-law and
husband, should not be given and that she should state that
the clothes she was wearing had caught fire. Immediately
thereafter, another dying declaration which came to be
recorded by PW 15 Khumansinh Nanabhai Damor, who had
recorded the first information report at the instance of
deceased Afsana, wherein she has stated that at about 8
o’clock in the morning, her mother-in-law Umedben started
goading her that she did not know how to cook and picked up a
quarrel with her. When she confronted her mother-in-law as to
why she was falsely maligning her, there was an exchange of
words, at which point of time her mother-in-law Umedben and
her father-in-law Mohammedbhai caught hold of her and her
husband Arifbhai sprinkled kerosene from a can over her and
lit a matchstick and set her ablaze, due to which she started
shouting, whereupon her sister-in-law Mehmoodaben arrived
there and covered her with a quilt and extinguished the
flames. She had sustained burn injuries all over her body. She
has further stated that her mother-in-law, father-in-law and
husband have told her that she should not complain to the
police against them and have threatened her in this manner.

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14.2 PW 4 Ahmedbhai Hussainbhai Shaikh, viz., father of
deceased Afsana, has, inter alia, deposed that when they went
to the hospital, he found that his daughter has sustained
severe burn injuries and there were bandages on her body and
she was being treated and that she was speaking softly. She
had told him, his wife and her maternal uncle and aunt, that
her mother-in-law, father-in-law and husband had got together
and burnt her. Her mother-in-law and father-in-law had caught
hold of her and her husband had lit a matchstick. PW 5
Yunusbhai Imambhai Shaikh has stated that after they reached
the hospital, upon asking Afsana as to what had happened, she
has stated that her mother-in-law, father-in-law and husband
had together set her ablaze. PW 6 Hafizabanu Yunusbhai
Shaikh has deposed that when they reached the hospital and
asked Afsana as to what had happened she had stated that her
mother-in-law, father-in-law and husband had burnt her. PW 8
Saberabibi Mehboobbhai Malek has stated that when they
went to the hospital, in the ward, Afsana was in a totally burnt
condition and her entire body was bandaged. Afsana was
talking to them and when they asked her as to what had
happened, she had informed them that her mother-in-law,
father-in-law and husband had burnt her with kerosene. PW 11
Anwarkhan Akbarkhan Pathan has deposed that on the day of
the incident he had set out from his house at about 7:30 to
8:00 in the morning and people were running and upon asking
them as to why they were running, he was told that someone
had got burnt. He also ran. When he reached there he saw that
Mehmoodaben has extinguished the flames on the lady and a
phone call was made to 108. He had taken them to the Padra
Government Hospital in a 108-van, after which, the doctor told
him to call her family members, and hence, he had gone to call

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her husband Arifbhai from Sardar Market, Padra, whereafter
Arifbhai came. They were told to take her from the
Government Hospital to Vadodara, and hence, they brought
her to the SSG Hospital. The witness has further stated that he
had reached after the flames on Afsana’s body had been
extinguished. He has admitted that when he reached the
house Mehmooda and the neighbours were present and none
of the accused persons were present. The witness has further
stated that after they reached the Padra Hospital, the Padra
Police Station was informed about the incident. He has
admitted that he had informed the Padra Police Station on
phone that Afsana has sustained burns in the incident and they
brought her to the Padra Hospital. The police has come to the
Padra Hospital and met him. He has stated that when the
police recorded her statement, he was present and that Afsana
had stated that when she went to take the can, kerosene got
spilled, there were flames and her clothes caught flames. In
the cross-examination of the witness it has further come out
that when Afsana was brought to the hospital, at that time
Mehmooda (her sister-in-law), accused Umedben and Arifbhai
had also come with them and no one else was with them. In his
cross-examination it has further come out that after Afsana
was admitted to the hospital, her husband Arifbhai, Umedben,
he and Mehmooda were present and that except for the four of
them, no one else was present. Subsequently Afsana’s
relatives had come.

14.3 From the evidence referred to hereinabove, the first
version given by Afsana after she was taken to the hospital
was that she had sustained burn injuries accidentally on
account of kerosene being spilled while trying to refill the stove

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while she was making tea in the morning. However, as is
evident from the testimony of PW 11 Anwarkhan Akbarkhan
Pathan, from the time Afsana sustained burn injuries, till her
relatives arrived at the S.S.G. Hospital, Afsana was
accompanied by her in-laws. Subsequently, her relatives,
namely, her parents, maternal aunt, etc. came to the S.S.G.
Hospital. According to the said witnesses, the version given by
Afsana was that her father-in-law, mother-in-law and husband
had set her ablaze. The Special Executive Magistrate (PW 12)
recorded Afsana’s dying declaration, wherein she had stated
that her mother-in-law and husband had sprinkled kerosene
over her and lit a matchstick and set her ablaze. Soon
thereafter, a first information report came to be recorded by
PW 15 Khumansinh Nanabhai Damor before whom Afsana has
given a slightly more elaborate version and has stated that her
father-in-law and mother-in-law had caught hold of her and her
husband poured kerosene from a can and lit a matchstick and
set her ablaze. Thus, contradictory versions have come on
record. One set of dying declarations stating that the deceased
has sustained burns accidentally has been given first in point
of time when she was brought to the hospital and the
subsequent set of dying declarations have been given after her
parents and relatives arrived at the hospital. The question that
arises for consideration is as to which of such dying
declarations should be accepted. In this regard Supreme Court
in the case of
Sudhakar v. State of Madhya Pradesh
(supra) while considering the question as to in cases involving
multiple dying declarations made by the deceased, which one
of various dying declarations should be believed by the court
and what are the principles governing such determination,
observed that this becomes more important where multiple

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dying declarations made by the deceased are either
contradictory or are at variance with each other to a large
extent. It was held that the test of common prudence would be
to first examine which of the dying declarations is corroborated
by other prosecution evidence. Further, attendant
circumstances, condition of deceased at the relevant time,
medical evidence, voluntariness and genuineness of statement
made by deceased, physical and mental fitness of deceased
and possibility of deceased being tutored, are some of the
factors which would guide exercise of judicial discretion by
court in such matters.

14.4 In the facts of the present case, while from the dying
declarations recorded by the Executive Magistrate and the
Deputy Superintendent of Police, it emerges that the first
version given by the deceased was a false version in view of
the threat administered to her by her in-laws, the evidence on
record clearly shows that at the time when the deceased was
brought to the hospital, she was accompanied solely by her in-
laws. On the other hand, the subsequent version was given by
the deceased after her relatives arrived at the hospital, and
hence, what would be required to be examined is as to
whether the subsequent statements have been made under
the influence of tutoring by her relatives. Thus, either the first
set of statements has been made under threat or the
subsequent set of statements has been made on account of
tutoring. To consider the veracity of such statements, it would
be necessary to examine the evidence that has come on
record so as to ascertain as to which version is the correct
version or whether none of the dying declarations can be
believed.

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14.5 As noted earlier, the medical case history recorded by the
Medical Officers is that the deceased has stated that while
filling kerosene in the stove while making tea in the morning,
she had accidentally sustained burn injuries. Therefore, it
would be necessary to examine the scene of offence
panchnama to ascertain as to whether such version finds
support therefrom. A perusal of the scene of offence
panchnama Exhibit 15 shows that it has been drawn on
5.7.2009 at 17:00 to 18:30 hours. As per the scene of offence
panchnama, the place was a residential house and the floor
was an earthen floor. There were remnants of red coloured
cloth lying on the floor and there were spots of kerosene on
the floor and scattered burnt cloths were lying there. The
cloths smelt of kerosene. Touching the wall was a wooden cot
with plastic strings. Near the leg of the bed there were four
scattered matchsticks, out of which three sticks were burnt.
There was one old torn quilt lying there which smelt of
kerosene and there were remnants of burnt cloth on the quilt.
Towards the northern wall of the house, next to a tin container,
there was a yellow coloured plastic can with ‘Dhara’ written on
it which did not have a cork. The smell of kerosene was
emanating from the can. The house had brick walls with a tiled
and tin sheet roof and earthen floor. In front of the house there
was an open space in which there was a shed with a platform.
In the shed, towards the north there was a stove. Thus, at the
scene of incident, no stove has been found to support the
defence version, namely that while filling kerosene in a stove
there were flames and Afsana’s clothes caught fire. Moreover
from the scene of offence of panchnama, the cooking area
appears to be in the shed outside the house. The presence of

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remnants of burnt cloths and the quilt supports the version
given by the deceased in the first information report, wherein
she has stated that upon being set ablaze, she started
screaming whereupon her sister-in-law, Mehmooda came and
put a quilt over her and extinguished the fire. While it is true
that both the panchas of the scene of offence panchnama have
turned hostile, the panchnamas have been duly proved
through the testimony of the Investigating Officer. PW 8
Saberabibi, in her cross-examination, has denied that the stove
was inside the house and has stated that those people used to
cook outside. The witness has stated that if she is asked as to
whether there was stove in the room where these people were
staying, then it is false. She has admitted that they were
always cooking outside the house. Thus, the facts elicited in
the cross-examination of witness Saberabibi clearly support
the panchnama of the scene of offence, namely that the
cooking area was outside the house and not inside.

14.6 Having regard to the above evidence, the first version
given by the deceased that she had sustained burn injuries
while refilling kerosene in a stove while making tea, does not
find support from the documentary evidence on record
inasmuch as there are no signs of articles for making tea or
any stove at the place of the incident.

14.7 Apart from the fact that the version does not support
from the documentary evidence, from the testimony of the
witnesses who are related to the deceased, it has clearly come
on record that there were serious disputes between the
parties. Afsana, time and again used to return to her parental
home. In the cross-examination of PW 4 Ahmedbhai

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Hussainbhai Shaikh, father of deceased, it has been suggested
that when his granddaughter turns two and half years old, she
has to be given a name and there is a custom of giving a small
or big ornament. That, as the witness was not in a position to
give Reshma (Afsana’s daughter) an ornament, there were
quarrels between his daughter Afsana and his son-in-law. In his
cross-examination, nothing has been suggested to contradict
the witness regarding the allegations of harassment. The
witness has not been contradicted as regards the fact that his
daughter has come back to her parental home as her mother-
in-law and her husband were subjecting her to extreme
harassment. There is no cross-examination as regards the
mother of the deceased having gone to leave the deceased at
her matrimonial home and her mother-in-law having refused to
let her come in and having beaten her. The witness has also
not been cross-examined as regards the deceased having been
driven away on the same day in the evening and she having
gone to aunt Sabirabibi’s house. Similarly, though other related
witnesses have also deposed regarding Afsana complaining
about ill treatment at the hands of the accused, in the cross-
examination they have been sought to be contradicted by
stating that no complaint has been lodged in this regard;
however, the averments with regard to the dispute between
the parties have not been sought to be contradicted. From the
cross-examination of PW 10 Rehanabibi Yusufbhai Shaikh, it
has been elicited that from the time of her marriage till her
daughter was born, Afsana used to come peacefully to their
house but after her daughter was born, she would come after
there was a fight. She has voluntarily stated that the accused
would drive her (Afsana) out, and hence, she used to come.

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14.8 Thus, from the overall evidence which has come on
record, it is evident that things were not well between Afsana
and the accused and time and again, Afsana was driven away
from her matrimonial home because of quarrels and disputes.
Two versions have come on record as regards the manner in
which Afsana was burnt by way of dying declarations made by
the deceased. The first version says that the deceased has
sustained accidental burns, which, however, does not find
support from the evidence on record. The subsequent version,
namely, that her in-laws and her husband had set her ablaze,
finds support from the testimonies of the witnesses as well as
from the scene of offence panchnama. Under the
circumstances, the court is of the view that the subsequent
version recorded by the Executive Magistrate and the Deputy
Superintendent of Police, both of whom are independent
persons, deserves to be accepted.

14.9 In view of the above discussion, the court has no
hesitation in holding that the first dying declaration was not
voluntary and not made with the free will of the deceased for
the reason that when the deceased was brought to hospital
she was accompanied by the accused and their relatives and
the deceased had been threatened by the accused not to
name them. When the history was given before the Medical
Officer, the accused and their relatives were present by the
side of the deceased. The statement of the deceased was
totally tilted in favour of her husband and in-laws and the
version put forth was that there were accidental flames while
refilling kerosene in a stove while making tea at home. This
appears to be factually incorrect inasmuch as if she had caught
fire while refilling kerosene in stove, there would be no

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question of kerosene falling on her. As discussed hereinabove
the scene of offence panchnama does not show either the
presence of a stove or remnants of tea or any other food
article that she may be cooking. On the contrary, the evidence
on record shows that cooking was done outside the room and
not inside it. Furthermore, within a short while after she gave
her first statement, after her own relatives arrived and the
deceased was no longer surrounded only by the accused
persons and their relatives, she gave another version of the
manner in which the incident took place. The second dying
declaration was recorded at 12:45 on the same day. The
statement was recorded by PW 12 the Executive Magistrate
and the subsequent dying declaration was recorded by PW 15
the Deputy Superintendent of Police. The subsequent dying
declarations recorded by the Executive Magistrate and the
Deputy Superintendent of Police are in conformity with each
other and are duly supported by the prosecution witnesses.

14.10 As discussed earlier the theory of the deceased
catching fire from a stove is neither probable nor possible in
the facts of the case. The kind of burn injuries that she has
sustained, clearly show that she was deliberately put on fire
rather than being injured as a result of an accidental fire.
Besides the deceased herself, has stated the reason behind
her making a false declaration at the first instance. It is clear
from the evidence adduced on record that the accused and
their relatives were present at the time of making the first
dying declaration and the deceased has stated wrong facts on
account of the threat administered by her in-laws and hence, is
not credible and trustworthy. In the considered view of this
court the subsequent dying declarations are authentic,

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voluntary and duly corroborated by other prosecution
witnesses including the medical evidence and the scene of
offence panchnama. Thus, the dying declarations, read in
conjunction with the statement of the prosecution witnesses
can safely be made the basis of conviction of the accused.

15. For the reasons recorded hereinabove, this court is in
complete agreement with the findings recorded by the trial
court and finds no reason to take a different view. The appeal,
therefore, fails and is, accordingly, dismissed. The impugned
judgment and order of conviction and sentence dated 28th
March 2012 passed by the learned 8th Additional District and
Sessions Judge (Ad Hoc), Vadodara in Sessions Case No.184 of
2009 is hereby confirmed.

(HARSHA DEVANI, J.)

(A.S. SUPEHIA, J.)
karim

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