Gujarat High Court
The State Of Gujarat vs Khimabhai Lakhmanbhai Charan on 12 January, 2024
NEUTRAL CITATION
R/CR.A/963/2005 JUDGMENT DATED: 12/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 963 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question YES
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
THE STATE OF GUJARAT
Versus
KHIMABHAI LAKHMANBHAI CHARAN 2 other(s)
Appearance:
MS VRUNDA SHAH, APP for the Appellant(s) No. 1
MR PARAM R BUCH(5625) for the Opponent(s)/Respondent(s) No. 1,2,3
CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 12/01/2024
ORAL JUDGMENT
1. This appeal is filed challenging the judgment and order
passed by learned 3rd Additional Sessions Judge, Fast Track
Court, Junagadh dated 14.12.2004 in Sessions Case No.56 of
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2003 acquitting the respondents from the offences punishable
under Sections 306, 498(A) and 114 of the Indian Penal Code.
2. it is the case of the prosecution that First Information
Report (FIR) came to be registered before the Keshod Police
Station being II-C.R.No.3045 of 2003 for the offences punishable
under Sections 498-A and 114 of the Indian Penal Code (IPC) by
the complainant, namely, Deviben wife of Khimabhai
Lakhmanbhai stating that cruelty was meted out at the end of
her husband and in laws under the pretext that marriage of
brother of complainant solemnized with sister of the husband of
complainant and complainant’s brother is harassing to the sister
of the husband of the complainant and therefore, on that cause,
she was tortured and harassed by husband and in-laws. On
14.4.2003 at around 13.00 hours, all the accused quarreling with
the deceased and started harassing for the same cause.
Husband had stated that he would set ablaze by setting on a fire
by pouring the kerosene. On the instigation, the complainant
replied that I would set on a fire to myself instead of you set on
fire to me. By saying so, she poured the kerosene on herself and
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set ablaze and received the burn injuries. On setting criminal law
in motion, a statement of the witnesses were recorded. She
succumbed to injury on 20.4.2003, therefore, Section 306 of IPC
was added and the panchnama of place of offence were drawn
as well as arrest panchnama were drawn. Medical Certificate as
well as Dying Declaration, which was recorded by the Executive
Magistrate was collected. On receiving the postmortem note, the
charge-sheet came to be submitted before the learned
Competent Court for the offence punishable under Sections 498-
A, 306 and 114 of the IPC, which was numbered as Criminal Case
No.377 of 2003. As the said case is triable by the learned
Sessions Court, it was committed to the learned Sessions Court
and numbered as Sessions Case No.56 of 2003. On being
satisfied with regard to receiving the charge-sheet papers by the
accused, the charge was framed below Exh.1 against accused for
the alleged offences. Plea was recorded below Exh.2, 3 and 4
wherein the accused had pleaded not guilty and claimed to be
tried. To prove the case against the respondents-accused,
prosecution had examined 13 witnesses and produced the 28
documentary evidences. On filing the closing pursis, further
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statement under Section 313 of the Code of Criminal Procedure
was recorded and all incriminating material were put before the
accused persons, however, the accused had denied the same
and pleaded false implications. Accused No.3 had further stated
in her statement that her marriage was solemnized at Bodka
Village as she was conceived by, she came for the delivery at her
parental house and she was falsely implicated in the present
offence. She further stated that after offence was registered,
baby girl was borne and she had taken the treatment at Keshod
Hospital. She stated that deceased was mentally unfit and
therefore, she committed suicide, she stated to be innocent and
prayed to be acquitted from the charges.
3. List of prosecution evidence is reproduced herein below:
Sr.No. P.W. Name Exh.No.
No.
Medical Witnesses.
1 1 Dr.Atulkumar Chandulal 13
2 2 Dr.Sudhaben Kantilal Shah 22
3 3 Dr.Jayant Hariprasad Pandya 26
4 5 Dr.Rameshgiri Mohangiri 40
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Government Witness
5 4 Bhimabhai Virabhai, Executive 37
Magistrate
Witnesses
6 8 Palabhai Dhakhabhai 49
7 9 Punjabhai Dhakhabhai 50
8 10 Somiben wife of Dhakhabhai 52
Panchwitnesses
9 6 Valabhai Virabhai 46
10 7 Ranabhai Kanabhai 47
Police Witnesses
11 11 Hasmukhlal Arjanbhai Ahir, PSI 54
12 12 Chanbhai Arjanbhai Chudasama- 59
PSO
13 13 Jivabhai Naranbhai Ram- Police Head 63
Constable
Documentary evidences
1 Refer Note of Maliya Hatina 14
2 MLC Case papers 15
3 Written Yadi of Panel Doctor 23
4 P.M. Note 24
5 General Hospital, Junagadh Transfer form 27
6 Dr.Pandya informing the police by letter 29
7 Dr.Pandya’s letter informing that Devuben died during 30
treatment.
8 Medical Case papers of Dr.J.H. Pandya 31
9 Medical Certificate of Dr.J.H.Pandya 32
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10 Yadi of Executive Magistrate regarding Dying 38
declaration
11 Dying Declaration 39
12 Medical Certificate, Maliya Hatina. 41
13 Case papers of Devuben at Maliya Hatina CHC 43
14 Inquest Panchnama 44
15 Panchanam of the accused 45
16 Possession given of Dead body 51
17 Yadi from PSO to PSI regarding incident 55
18 Copy of complaint of 00/03 56
19 Copy of Entry of Station Diary of Maliya 57
20 Complaint 58
21 True copy of complaint made in Keshod Police Station 60
22 True copy of diary of Keshod Police Station 61
23 Yadi regarding offence of Keshod Police Station 62
24 For charge-sheet sanction letter 64
25 Panchnama of place of offence 65
26 Form of dying declaration 66
27 Addiing Section 306 67
28 Pursis regarding end of evidence 68
4. Learned Sessions Court considering the arguments
advanced by the respective parties and material placed including
the depositions of the witnesses, acquitted the respondent/s –
accused from the charges, which is impugned before this Court.
5. Heard learned APP, Ms.Vrunda Shah, for the appellant-
State and learned advocate, Mr.Param Buch, for the
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respondents.
6. Learned APP submits that though the prosecution had
proved the case beyond reasonable doubt, learned trial Court
acquitted the respondent/s-accused from the charges. Learned
APP draws the attention of the Court with regard to the M.L.C.
Papers below Exh.43, Dying Declaration below Exh.39, complaint
below Exh.58 and submitted that in all these evidences, there
was a consistent version of the deceased with regard to the
cause of harassment, which drives deceased to commit suicide.
Learned APP further relies on the evidence of Dr.Rameshgiri
Mohangiri Meghnathi, Exh.40, Dr.Jayant Hariprasad Pandya,
below Exh.26 and Dr.Atulkumar Chandulal below Exh.13 and
submitted that all these doctors had examined the deceased and
Dr.Rameshgiri Mohangiri, PW-5 recorded in his medical papers
the history given by the deceased herself wherein also, version,
which is mentioned by the deceased in complaint and Dying
Declaration, was reiterated. Learned APP also relies on the
evidence of Bhimbabhai Virabhai, Executive Magistrate, below
Exh.37 and submitted that Dying Declaration recorded after
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obtaining certificate of mental fitness of Doctor, there was no
any inconsistency in statement of deceased and though the
evidence of this witness was fully corroborated and found to be a
trustworthy, learned trial Court discarded this evidence on giving
much weightage to the minor discrepancies. Learned APP relies
on the evidence of the witnesses, namely, Sumiben wife of
Dakhabhai, Exh.52 and stated that though she declared a hostile
but she had supported the case of the prosecution and the
deceased disclosed cause of quarrel and true narration of
incident. However, learned Court had discarded the evidence on
the ground that she was declared hostile. Therefore, learned APP
prays that judgment and order passed by the learned trial Court
is perverse and therefore, all the accused be punished
accordingly.
7. On the other hand, learned advocate, Mr.Param Buch,
appearing for the respondents – accused submitted judgment
and order passed by the learned trial Court is just and proper
that though she had stated in her dying declaration with regard
to the involvement of the present applicant but she is further
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stating that husband and her in-laws had extinguished the fire
and tried to save her and thereafter she was taken to Maliya
Hatina into the rickshaw thereafter. She was taken to different
Hospitals. It is further submitted that she was having the 5
months’ pregnancy, however, due to burn injuries, the same was
terminated. Learned advocate further submits that during the
course of investigation, further statement of the deceased was
recorded whereby she states that she was taken at the hospital
in the open rickshaw during the noon hours and as she was
annoyed and therefore, given names of father in law and one
sister in law, however, she has further stated in her statement
that they are innocent and they are not involved in the offence.
Mr.Param Buch, learned advocate further submits that from
overall analysis from the evidence on record and the material
placed before the concerned Court, it transpires that the main
witnesses, i.e. Police Officer of Maliya Hatina Police Station,
Executive Magistrate and Dr.Meghnathi had given the
contradictory version specially with regard to presence of both
witnesses i.e. police officer and Magistrate, at the same time, in
hospital while recording the statement of patient – deceased.
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Mr.Param Buch, learned advocate further submits that thumb
impression of the deceased on dying declaration is not identified,
which was accepted by witnesses. Neither the Executive
Magistrate had taken the pain to inquire with regard to the
educational qualification of the deceased nor the police officer
done the same. Learned advocate further submits that on being
cross examined by the defence, Executive Magistrate and Police
Officer had denied their presence with each other, which attains
the importance when the time of their presence at Hospital is
overlapping to each other. Mr.Param Buch, learned advocate
submits that material discrepancies attain the support from the
version of Dr.Meghnathi as he put his signature on dying
declaration at Exh.39 at 3.25 and 4.05 p.m. and in the FIR Exh.58
he has put his signature at 3.30 p.m. Mr.Param Buch, learned
advocate further submits that neither the MLC certificate Exh.43
have any signature of patient – deceased nor any note
suggesting that the history was given by patient herself. In
Medical Certificate at Exh.31, there is certain observation which
are stricken off / written off and the ink on the said certificate
also differs, which raises serious doubt with regard to
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authenticity of the document. Learned advocate further submits
that evidence of Doctor who has given the treatment and Doctor
who carried the postmortem are self contradictory. Mr.Param
Buch, learned advocate further submits that relatives of the
deceased have also not supported the case of the prosecution
and one of the brother, namely, Palabhai, who was examined
below Exh.49 was declared hostile, who clearly stated that his
sister was not ill-treated and there was no any harassment by
the accused persons. Her mother and brother, who were
examined below Exh.52 and 50 have also stated that she was
suffering from mental illness and was under treatment. Mr.Buch,
learned advocate submits that in order to prove the charge
under Section 107 of IPC, there has to be some overact of the
accused or in absence of overact, which prompted the deceased
to commit suicide and she had no any other option except to
commit suicide. Under these circumstances, it is submitted that
prosecution had failed to prove the cruelty / harassment meted
out at the ends of the accused persons, which instigated or
provoked the deceased to commit suicide and therefore, the
learned trial Court has rightly acquitted the accused person,
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which may not be interfered after this much period of 20 years.
Learned advocate further submits that learned trial Court have
tested, evaluated and discussed the entire evidence at length
and in detail and that the findings of acquittal not being
perverse, contrary to materials on record, palpable wrong,
erroneous or unsustainable, this Hon’ble Court may kindly not
entertain the appeal filed against the acquittal of accused
persons. Learned advocate further submits that learned trial
Court has not committed any error of fact and law in assigning
reasons in acquitting the accused persons. In fact, learned trial
Court had minutely examined the evidence and has properly
appreciated the evidence on record and has rightly acquitted
accused persons and there are no exceptional circumstances/
findings in the impugned judgment so as to make it a case of
perverse acquittal. Therefore, it was prayed to reject the appeal
filed by the State against the acquittal. Learned advocate further
relies on the decision rendered by this Court in the case of State
of Gujarat V/s. Shailesh Kalidas Patel passed in Criminal
Appeal No.283 of 2008 dated 24.3.2023 and submitted that
even if two view are possible, the appellate Court may not
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disturb the findings of the trial Court. At the end, learned
advocate submits that findings and reasons which are given by
the learned trial Court is in accordance to the evidence led
before the lower trial Court and therefore, prays to dismiss the
appeal and to confirm the order passed by the learned trial
Court.
8. Heard the learned advocates for the parties.
9. The relevant provision, which is now required to be looked
into, are reproduced herein below:
9.1 Section 32 of the Indian Evidence Act, 1872:-
32 Cases in which statement of relevant fact by person who is dead
or cannot be found, etc ., is relevant. –Statements, written or
verbal, of relevant facts made by a person who is dead, or who
cannot be found, or who has become incapable of giving evidence,
or whose attendance cannot be procured without an amount of delay
or expense which, under the circumstances of the case, appears to
the Court unreasonable, are themselves relevant facts in the
following cases:–
1 when it relates to cause of death. –When the statement is
made by a person as to the cause of his death, or as to any of
the circumstances of the transaction which resulted in his
death, in cases in which the cause of that person’s death comes
into question. Such statements are relevant whether the person
who made them was or was not, at the time when they were
made, under expectation of death, and whatever may be thePage 13 of 84
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nature of the proceeding in which the cause of his death comes
into question.
2 or is made in course of business. –When the statement was
made by such person in the ordinary course of business, and in
particular when it consists of any entry or memorandum made
by him in books kept in the ordinary course of business, or in
the discharge of professional duty; or of an acknowledgment
written or signed by him of the receipt of money, goods,
securities or property of any kind; or of a document used in
commerce written or signed by him; or of the date of a letter
or other document usually dated, written or signed by him.
3 or against interest of maker. –When the statement is
against the pecuniary or proprietary interest of the person
making it, or when, if true, it would expose him or would
have exposed him to a criminal prosecution or to a suit for
damages.
4 or gives opinion as to public right or custom, or matters of
general interest. –When the statement gives the opinion of
any such person, as to the existence of any public right or
custom or matter of public or general interest, of the existence
of which, if it existed he would have been likely to be aware,
and when such statement was made before any controversy as
to such right, custom or matter had arisen.
5 or relates to existence of relationship. –When the statement
25
relates to the existence of any relationship [by blood,
marriage or adoption] between persons as to whose
25
relationship [by blood, marriage or adoption] the person
making the statement had special means of knowledge, and
when the statement was made before the question in dispute
was raised.
6 or is made in will or deed relating to family affairs. –When
the statement relates to the existence of any
25
relationship [by blood, marriage or adoption] between
persons deceased, and is made in any will or deed relating toPage 14 of 84
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the affairs of the family to which any such deceased person
belonged, or in any family pedigree, or upon any tombstone,
family portrait, or other thing on which such statements are
usually made, and when such statement was made before the
question in dispute was raised.
7 or in document relating to transaction mentioned in section
13, clause (a). –When the statement is contained in any deed,
will or other document which relates to any such transaction
as is mentioned in section 13, clause (a).
8 or is made by several persons, and expresses feelings
relevant to matter in question. –When the statement was
made by a number of persons, and expressed feelings or
impressions on their part relevant to the matter in question.
Illustrations
(a) The question is, whether A was murdered by B; or A
dies of injuries received in a transaction in the course of
which she was ravished. The question is, whether she was
ravished by B; or The question is, whether A was killed
by B under such circumstances that a suit would lie
against B by A’s widow. Statements made by A as to the
cause of his or her death, referring respectively to the
murder, the rape, and the actionable wrong under
consideration, are relevant facts.
(b) The question is as to the date of A’s birth. An entry in
the diary of a deceased surgeon, regularly kept in the
course of business, stating that, on a given day he
attended A’s mother and delivered her of a son, is a
relevant fact.
(c) The question is, whether A was in Calcutta on a
given day. A statement in the diary of a deceased
solicitor, regularly kept in the course of business, that,
on a given day, the solicitor attended A at a place
mentioned, in Calcutta, for the purpose of conferring
with him upon specified business, is a relevant fact.
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(d) The question is, whether a ship sailed from Bombay
harbour on a given day. A letter written by a deceased
member of a merchant’s firm, by which she was
chartered, to their correspondents in London to whom
the cargo was consigned, stating that the ship sailed on
a given day from Bombay harbour, is a relevant fact.
(e) The question is, whether rent was paid to A for
certain land. A letter from A’s deceased agent to A,
saying that he had received the rent on A’s account and
held it at A’s orders, is a relevant fact.
(f) The question is, whether A and B were legally
married. The statement of a deceased clergyman that he
married them under such circumstances that the
celebration would be a crime, is relevant.
(g) The question is, whether A, a person who cannot be
found, wrote a letter on a certain day. The fact that a
letter written by him is dated on that day, is relevant.
(h) The question is, what was the cause of the wreck of
a ship. A protest made by the Captain, whose
attendance cannot be procured, is a relevant fact.
(i) The question is, whether a given road is a public
way. A statement by A, a deceased headman of the
village, that the road was public, is a relevant fact.
(j) The question is, what was the price of grain on a
certain day in a particular market. A statement of the
price, made by a deceased banya in the ordinary course
of his business is a relevant fact.
(k) The question is, whether A, who is dead, was the
father of B. A statement by A that B was his son, is a
relevant fact.
(l) The question is, what was the date of the birth of A.
A letter from A’s deceased father to a friend,
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announcing the birth of A on a given day, is a relevant
fact.
(m) The question is, whether, and when, A and B were
married. An entry in a memorandum-book by C, the
deceased father of B, of his daughter’s marriage with A
on a given date, is a relevant fact.
(n) A sues B for a libel expressed in a painted
caricature exposed in a shop window. The question is
as to the similarity of the caricature and its libellous
character. The remarks of a crowd of spectators on
these points may be proved.
9.2 Section 113-A of the Evidence Actt: Presumption as to abetment of
suicide by a married woman.
1[113A. Presumption as to abetment of suicide by a married woman.
–When the question is whether the commission of suicide by a
woman had been abetted by her husband or any relative of her
husband and it is shown that she had committed suicide within a
period of seven years from the date of her marriage and that her
husband or such relative of her husband had subjected her to cruelty,
the court may presume, having regard to all the other circumstances
of the case, that such suicide had been abetted by her husband or by
such relative of her husband.
Explanation. — For the purposes of this section, “cruelty” shall have
the same meaning as in section 498A of the Indian Penal Code (45
of 1860).]
9.3 Section 107 of IPC Abetment of a thing.
A person abets the doing of a thing, who–
First.–Instigates any person to do that thing; or
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Secondly.–Engages with one or more other person or persons in any
conspiracy for the doing of that thing, if an act or illegal omission takes
place in pursuance of that conspiracy, and in order to the doing of that
thing; or
Thirdly.–Intentionally aids, by any act or illegal omission, the doing of
that thing.
Explanation 1.–A person who, by wilful misrepresentation, or by
wilful concealment of a material fact which he is bound to disclose,
voluntarily causes or procures, or attempts to cause or procure, a thing
to be done, is said to instigate the doing of that thing.
Illustration
A, a public officer, is authorised by a warrant from a Court of Justice to
apprehend Z, B, knowing that fact and also that C is not Z, wilfully
represents to A that C is Z, and thereby intentionally causes A to
apprehend C. Here B abets by instigation the apprehension of C.
Explanation 2.–Whoever, either prior to or at the time of the
commission of an act, does anything in order to facilitate the
commission of that act, and thereby facilitates the commission thereof,
is said to aid the doing of that act.
9.4 Section 306 of IPC – Abetment of suicide.–If any person commits
suicide, whoever abets the commission of such suicide, shall be punished with
imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine.
9.5 Section 498-A of IPC Husband or relative of husband of a woman
subjecting her to cruelty.
1[Whoever, being the husband or the relative of the husband of a woman,
subjects such woman to cruelty shall be punished with imprisonment for a term
which may extend to three years and shall also be liable to fine.
Explanation.–For the purposes of this section, “cruelty means”–
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(a) any wilful conduct which is of such a nature as is likely to drive the woman
to commit suicide or to cause grave injury or danger to life, limb or health
(whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing
her or any person related to her to meet any unlawful demand for any property
or valuable security or is on account of failure by her or any person related to
her to meet such demand.]
10. Before discussing case on merits, this Court would like to
produce the testimony of certain witnesses and documentary
evidences.
10.1 The testimony of Dr.Rameshgiri Mohngiri Meghnath,
Vide Exh. 40, which reads as under:
“On 14.4.2003, when I was on duty at Maliya Hatina
Community Health Center, Devuben Khimjibhai Charan,
aged about 20 years, Manekdhar, was brought at around
2.30 O’Clock in afternoon. She stated to have sustained
burn injuries at around 1.30 O’Clock in afternoon on
14.4.2003 and she was brought at 2.30 O’Clock. On
examining her, superficial burns were observed on the
right side of her face, on the neck, on the upper portion of
the stomach, on the portion above the navel, on the chest
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and waist, on the thigh, on the outer side of the right
thigh, on both legs, on the left thigh, on the entire right
hand, and on the left hand. Both the dorsal sides were
not burnt. Soles of feet were not burnt. The left side of the
face and upper portion of the left hand were not burnt.
Patient Devuben had told me that she was pregnant for
five months. Devuben had told me that my husband used
to beat me on being instigated and I was harassed by my
mother in-law, father in-law, husband and sister in-law
and therefore, I set ablaze myself on my own by pouring
kerosene. After examining the said patient, I immediately
started her emergency treatment, and informed the police
on telephone. Thereafter, the police statement and D.D.
of the patient were recorded in the Burns Ward. After
completion of the said police statement and D.D., I
transferred the patient to Junagadh for further treatment.
In my opinion, this is a grievous innury. The said injury is
recent. It has been caused due to burning. I cannot state
regarding its recovery period. It is such kind of inquiry
which can cause the death of the patient. In my opinion
around 75% portion of the patient was burnt. I have
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issued this certificate in this regard. It has been produced
in original with Mark – 9/12. It bears my signature. I
produce it and it has been given Exh.41. I brought the
O.P.D. case papers with me and also indoor case papers
of the patient. The name and other details of the patient
have been written in the handwriting of the person who
registered the case. The details regarding the treatment
provided to the patient have been written in my
handwriting. The note regarding the burn injury has been
written in my handwriting. The facts mentioned in the said
paper that the condition of the patient is critical and her
husband has been informed are not written in my
handwriting. There is the signature of Khimabhai below
the said writing. The endorsement to transfer the patient
is in my handwriting. The said case papers are produced.
As far as I remember, I was with the patient when the
police came to inquire the patient. When the police came
to inquire the patient, I have not mentioned in the case
papers regarding the inquiry by the police. When the
police came to record the statement of the patient, the
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condition of patient was critical and she was conscious. I
have mentioned in my case papers that, at that time, the
patient was conscious. I noted in the statement recorded
by the police that the patient is conscious. I have been
shown Mark – 9/2. On its back side, after making an
endorsement in my handwriting that the patient is
conscious, I have put my signature. I have been shown
Exh.39. The first endorsement in it was made at the time
of beginning the D.D. and the other two endorsements
were made after completion of the D.D. It bears my
signature.
In the cross examination by the defence, it is deposed
by the Doctor that as stated by me, the superficial burns
have been used, as the skin is involved, there ware
blisters, and the skin is uprooted at some portions. The
deep burns are not a different type of burn injury. It is true
that I have not mentioned the degree of burns in my
certificate. It is true that the second and third degree
burns involve burns up to muscle and bones. It is true
that the patient I have examined had burns upto skin. In
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the case of muscle deep burns, the patient loses
consciousness. With respect to it, I state that if there are
muscle deep burns, the patient will lose consciousness, If
there are muscle-deep and bone-deed burns. It is true
that I have not mentioned about the smell of kerosene in
my case papers or the certificate. Generally, we mention
about the smell of kerosene or any other substance in the
case papers and the certificate. It is true that I have not
observed third degree burns on the patient in this case. I
have not observed muscle-deep burns in this case. The
time mentioned by me below my endorsement in Exh.39
and Mark 9/2 is true. It is not true that both the police
personnel and the Mamlatdar were present at the same
time when the endorsements in Exh.39 and Mark 9/2
were made by me. It is true that, in many cases of
pregnancy, a woman becomes sensitive during the initial
three to five months’ of pregnancy. There will be
frustration and it leads to the thought of suicide. It has
been mentioned in the outdoor case papers that the
patient is pregnant. I do not agree with the fact that if the
history is given by the patient in the MLC case papers, it
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is written in the MLC case papers. It is not true that, if the
patient has given a history and it has been written in the
MLC case papers, such history is written in the certificate
in all the cases. It is true that when a patient sustains
severe burns, the patient will be in shock due to the loss
of liquid from the body. It is not true that, in such cases,
the patient becomes irritative condition, the patient
speaks senselessly. It is true that, when the said patient
was brought to me, it was the time of severe heat. It is
true that the patient’s irritative condition feel comfortable
in the summer season. It is true that I have mentioned in
the indoor case papers regarding the patient to whom I
provided the treatment. It is true that I have not
mentioned in my case papers regarding the police
statement and the D.D. It is true that I have not
mentioned the time of beginning the treatment in the
indoor case papers. It is true that I have not obtained the
signature of the patient below the history. It is not true
that, it is necessary to obtain the signature of the patient if
the patient’s condition is serious and the patient givens
any statement. It is true that as it is in the MLC case
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papers, it has not been mentioned in the certificate that
there was harassment by mother in-law, father in-law,
sister in-law and the husband and her husband was being
instigated, therefore, I commit suicide. It is not true that
when I issued the certificate, there was no such note I the
case papers of the hospital. It is not true that the case
papers of Exh.43 were not in existence till 10.3.2004. It is
not true that, since the police gave me instruction to
prepare the said case papers, I have prepared them later
on. It is not true that as the first degree burns on Devuben
were superficial, I did not examine. It is not true that it has
not happened that I made the endorsements of Exh.39
and Mark 9/2 separately. The Mamlatdar had begun the
D.D. at 3-25. I cannot state as to when the police
personnel had come. I do not remember as to who were
the police personnel. It has not happened that the police
personnel gave me their introduction or I gave them my
introduction. I do not remember now the name of the
Mamlatdar. If the patient is conscious and the question is
complicated, the patient may or may not understand it. It
is true that, in all the cases, if the injured person is
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conscious, he may or may not give the answer to the
question after understanding it. It is true that I have
transferred her to Junagadh with a written refer note. I
have not brought the refer note. I have not mentioned the
time in the case papers as to when I referred the patient
to Junagadh. I do not remember whether I have
mentioned the time in the refer note. I had not written the
history of the patient in the refer note. It is true that the
burn injuries sustained by Devuben can also be caused
by accident. It is not true that in the case of burning, it is
necessary to investigate as to by which medium the
patient has sustained burn injuries. It is true that the
incidents of burning by kerosene also take place by
accident. The relatives of the patient were present at the
hospital. I do not remember whether the patient was
brought to the hospital in an open rickshaw. It is true that
in the case of sustaining burn injuries on face, the patient
suffers from the pain and faces difficulty in speaking. It is
true that if the carbon particles enter the respiratory
system, the patient faces difficulty in speaking. It is true
that the police has not sought my opinion till date with
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respect to the history written by me in my case papers”.
10.2 Record of Medical Test vide Exh.43, which is
reproduced herein below:
Annexure of Exh-43
Record of Medical case
Mecical record
Hospital- CHC Maliya Hatina Registration No.627
Department- Burns Ward Admitted on: Date-14/04/03
Time: 02:30 pm
No.8413 Discharged or died on:
Date:
Time:
C/O: Medical Officer Dr. RMM Caste:
Name: Deviben Khimji Income:
Sex: Female
Age: 20 years Result:
1. Recovered
2. Discharged
3. Not discharged
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4. Fled.
5. Died.
Address: Manka Dhar
Occupation:
Relative:
Address:
Referred by:
Temporary diagnosis: Suicidal burns about 75 % Final diagnosis:
Date Treatment Remarks Treatment and diet
-do- I was harassed by my father in Inj. Diclofenac (1)
law, mother in law, sister in law ampule
and husband. My husband used to Inj. T.T. illegible
beat me following the instigation Inj. Diazepam (1) amp
by others. I have set myself on fire Inj. Mexin illegible
by pouring kerosene on me. Inj. Dexomethazone
illegible
Inj. CPM (1) ampule
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Inj. DNS (1) 500 ml
Inj. Ringer lactate
illegible
illegible
illegible sulfadiquine
I have been informed that Advcondition of my wife is serious. Patient transferred to
Civil Hospital,
Sd/- Khimabhai Lakhabhai Junagadh
Sd/-
10.3 The another material witness, who was examined
before the learned trial Court was Hasmukhlal
Arjanbhai Ahir below Exh.54. The evidence is
reproduced herein below:
“(1) I was discharging my duty as P.S.I. at Maliya
Hatina Police Station on 14/04/2003. Dr. Meghnathi from
C.H.C., Maliya, informed over the telephone at the police
station at 15.00 hours that Deviben, wife of Khima Lakha
Charan, has been brought in the burnt condition for the
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treatment. Mr. R.S. Babariya, the then P.S.O., made
entry vide D.O. No. 43/03 in the station diary in this
regard and gave me D.O. letter. The original of the same
is produced vide mark 9/1. I produce the same, and the
same is given Exh.No. 55. After receiving D.O., I and my
writer – Constable Mr. Naranbhai went to the Government
Hospital at Maliya by private motor cycle. Deviben was
under the treatment in the burnt condition. I asked Dr.
Meghnathi as to whether she is conscious to give her
complaint or not. He replied in affirmative. Therefore, I
recorded her detailed complaint before me. I recorded the
complaint as dictated by the lady complainant. It is in the
handwriting of my writer. The thumb impression of the
lady complainant was obtained after complaint was
recorded. Meantime, no other procedure was conducted.
Now I state that I read over the complaint to the lady
complainant. I put my signature as before me, and I
obtained endorsement from the Medical Officer therein to
the effect that the patient is conscious. Thereafter, I
returned to Maliya Police Station, and I myself made
entry in the police station diary at 16.00 hours. As the
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offence was committed within the jurisdiction of Keshod
Police Station, I registered the F.I.R. being No. 00/03 at
my police station u/s 498(A) of the I.P.C. I gave
instruction to P.S.O., Keshod Police Station, through
wireless to collect the papers of the complaint. The true
copy of F.I.R. registered at Maliya Hatina is produced
vide mark 9/1(A). I produce the same and the same is
given Exh. No. 56. The true copy of station diary of
Maliya Hatina Police Station is produced vide mark 53/1. I
produce the same and the same is given Exh. No. 57.
The mark ‘A’ is given Exh. No. 58.
During the cross examination of the defence
witness, this witness deposed that when information was
received through telephone at police station, I was
present at the police station. I had reached the hospital
seven minutes after entry was made. I did not note time
of completion of recording of the statement of the
deceased with my handwriting. Mr. Naranbhai Jivabhai
was my writer. The complaint is in his handwriting. When
I reached the hospital, Dr. Meghnathi was with the
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patient. It is not true that when I was with the patient,
Executive Magistrate had come to record the statement
of the patient. I stayed in the ward till 15.40 hours.
According to me, I had been in the burns ward from 15.07
hours to 15.40 hours. The Executive Magistrate did not
come to the ward till I left. It has not occurred that
Executive Magistrate has asked something in my
presence. The writing of Dr. Meghnathi to the effect that
the patient is conscious or not has not been obtained
before the commencement of the complaint. The opinion
of Dr. Meghnathi has not been obtained on any separate
paper before recording the complaint. While I was
recording the statement of the patient, I asked as to
whether the patient is illiterate or literate and I recorded
the reply thereof in the statement. The complaint has not
been recorded in the question-answer form. The
complaint was recorded in the manner that I ask a
question to the patient, and the patient gives reply thereof
and the writer can listen to the same. It occurred that I
had to ask a question again when the patient stopped
speaking. It is not true that I did not attend the patient
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from 15.10 hours to 15.40 hours. It is not true that I did
not go to the burns ward from 15.10 hours to 15.40 hours
because time has not been noted in the complaint. It is
not true that the statement in question has not been
recorded in my presence, but it was brought to the police
station to obtain my signature therein. It is not true that I
myself did not go and therefore, statement of the patient
was not recorded in the question-answer form. I do not
remember that P.S.O. sent a yaadi to the Executive
Magistrate to record D.D. in connection with D.O. No.
43/2003. The Exh. No. 38 bears the handwriting of P.S.O.
Mr. Babariya (Maliya Hatina). It is the endorsement of the
respective Officer in token of having received the same at
15.10 hours. It is not true that Devuben was not in a
mental or physical condition to put thumb impression in
the Exh. No. 58. It is true that signature of no one has
been obtained as identifier of the thumb impression of
Devuben. It is not true that meantime I received
information through telephone and I went to the hospital,
entry of the station diary was kept open. It is true that
offence in the station diary has not been registered in the
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handwriting of the P.S.O. The witness himself states that
I have registered the same. I did not receive any
information as to whether Executive Magistrate went to
the hospital to make inquiry of the patient or not when I
registered the offence at 16.00 hours on 14/04/2003. The
papers of Keshod Police Station were not forwarded in
my presence. It has not happened that I forwarded
papers to Keshod Police Station and made entry thereof.
It is not true that no statement of Devuben was given in
my presence or it has not been recorded as dictated by
Devuben. It is not true that Devuben was not in a mental
or physical condition to give a statement”.
10.4 The statement of the deceased, namely,
Deviben wife of Khima Lakha Charan – complainant
recorded vide Exh.58 is reproduced herein below for
ready reference:-
Date :- 14/04/03
My name is Deviben wife of Khima Lakha Charan
by caste, aged about 21 years, occupation – housewife,
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residing at Manakadhar, on the outskirt of Kalvani village,
Taluka – Keshod.
On being asked personally, I state that I reside in
the joint family consisting of my mother-in-law Nathiben,
father-in-law Lakhabhai and sisters-in-law Sonal and
Maniben at the aforesaid place. My parental home is at
Rajpara village in Visavadar Taluka. My father has died.
Naran Dhamabhai resides at Rajpara village. My
marriage was solemnized as per rites and rituals of my
caste one year back. I am conceived by about five
months. My brother Palabhai was married to my sister-in-
law Rajiben, and hence, my marriage was solemnized by
way of exchange marriage.
After marriage, my in-laws – my husband, my
parents-in-law, my sister-in-law, etc. had been subjecting
me to mental and physical harassment for one year since
I came to maternal home under the pretext that my
brother Palo harasses my sister-in-law Raji. My husband
Khima frequently used to beat me and to threaten me to
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set on fire.
When aforesaid all the persons of my house
were present at about one o’clock in the afternoon today,
a quarrel took place as per the aforesaid details. As I felt
harassment unbearable, I stated that, “Instead of you set
me on fire, let me set myself on fire” and therefore, I
sprinkled kerosene, lit match stick and set myself on fire.
Therefore, aforesaid persons of my house doused the
fire. After dousing fire, my mother-in-law brought me to
the Government Hospital at Maliya by Chhakdo rickshaw.
I am under the treatment. I can understand questions
being asked to me. Accordingly, I am conscious. I have
severely sustained burns injuries on the whole body. The
incident of burning has happened as per the aforesaid
details. Apart from this, I further state that my husband
Khimo subjects me to harassment and beats me after
being instigated by other members of my family. Now, I
am fully conscious.
The cause of this incident is stated above. There
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is no other cause than it.
The facts of my complaint as dictated by me are
true and correct. The same is read over to me, and as it
is found to be true and correct, I have put my thumb
impression below.
The thumb impression of right hand of Deviben wife of
Khima.
10.5 The most important wintess who is the Executive
Magistrate, namely, Bhimabhai Virabhai, who
examined below Exh.37, as PW-4. His evidence is
reproduced herein below:
“(1) I was performing duty as Executive Magistrate at
the Office of the Mamlatdar on 14/04/2003. At 15:10
hours on that day, I received an information from P.S.O.
of Maliya Hatina to record d.d. of Devuben Khimabhai of
Gangecha village, who had sustained burn injuries and
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was admitted to Maliya Government Hospital and
therefore, I went to the hospital at 15:20 hours on
14/04/2003. I have brought the d.o. in original with me
today. I have put my signature and date and time on it for
the receipt of the d.o.. I am producing the d.o. in original,
which is produced vide Exhibit-38. After receiving the
d.o., I reached the hospital at 15:20 hours. I went to
Burns Ward and met Dr. Meghnathi there. The relatives
of the patient were present there. I told the doctor about
the d.o. and recording of d.d. and the doctor showed me
the patient. Upon asking whether the patient was in a
conscious state and able to give answers or not, the
doctor examined the patient and told that she was in a
fully conscious state and able to give answers. Therefore,
the relatives of the patient were asked to go outside and
door of the ward was closed and recording of d.d. was
started at 15:25 hours in presence of the doctor. I also
examined the patient and she was able to speak. She
was able to speak with understanding. The doctor
certified on the paper on which the d.d. was recorded that
the patient was in a conscious state. Upon being asked
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her name, she told her name to be Deviben Khimabhai.
Upon being asked as to which village she belonged to,
she replied Gangecha, Mankadhar. Upon being asked as
to what has happened to her, she replied that she has
sustained burn injuries. Upon being asked as to how she
sustained the burn injuries, she told that when she was
washing dishes in the afternoon, her husband came
home and her mother-in-law instigated him by saying that
the husband of her daughter Raji tortures her and that,
her husband beat her and told, I am going to set you on
fire and therefore, she went inside the house and poured
kerosene over herself and set herself on fire. Upon being
asked as to who extinguished the fire, she told that all the
family members extinguished the fire. Upon being asked
as to who brought her to the hospital, she told that her
husband and mother-in-law brought her to the hospital in
a chhakdo rickshaw. Upon being asked as to which of the
family members had been present when she set herself
on fire, she told that her mother-in-law, husband and two
sisters-in-law (nanad) had been present and that, her
father-in-law had gone to attend a funeral at Kanej
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village. Upon being asked as to whom among the family
members she had discord with, she told that her
husband, parents-in-law and both the sisters-in-law were
torturing her. She has stated that she was married for
about a year and that she did not have child. She told that
she did not want to state anything further. The doctor
stated that the patient was in a fully conscious state and
able to give answers during the whole time from when
recording of the d.d. was started to the time when it was
completed and put his signature in the d.d. for the same.
It seemed to me as well that the patient was in a healthy
state at the time of recording the d.d.. After the d.d. was
completed, a right hand thumb impression of the patient
was obtained before me. I have brought the d.d. in
original with me today. I put my signature in it as before
me. The d.d. was completed at 16:05. I produced the said
d.d. in original. It is produced vide Exhibit-39.
On corss examination by the defence, witness
deposed that it is true that when I went to record the d.d.,
police staff had been present with the patient in the
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hospital. I do not know whether the PSI, Maliya Hatina
was present there or not as I do not know him. I received
the yadi for recording the d.d. at 03:10 PM. It was a
holiday. I had gone to the office for some office work. It
took about ten minutes for me to reach the ward for
recording d.d. after I received the yadi. It is not true that
when I went to record d.d., the police staff had been
inquiring the patient. Such has not happened that, when I
was inquiring the patient, the police staff was also
inquiring the patient. It is not true that Dr. Meghnathi gave
endorsement to police regarding mental and physical
state of the patient in my presence. It is not true that,
when the d.d. was recorded completely, there was no
space left for the doctor to put endorsement and
therefore, the doctor put endorsement in the margin
space. The identity of the thumb impression of the patient
has not been certified and name of the patient has also
not been recorded in it. I do not know as to whether the
thumb of the patient was inked or not when I obtained her
thumb impression. The patient had not sustained burn
injury on the thumb, of which, an impression was
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obtained by me. It is not true that when I recorded the
d.d. of the patient, a treatment of the patient was
underway. It is not true that when I recorded the d.d. of
the patient, she was feeling uncomfortable and asking for
water repeatedly. When I asked questions to the patient, I
did not ask as to whether she was literate or not. It is true
that it is necessary to ask whether the patient is literate or
not when d.d. of the patient is recorded. It is true that, if a
patient is literate and not able to put his signature under
any circumstances and his thumb impression is obtained,
such is noted down in the d.d.. It is true that, if a patient is
illiterate, his statement is read over to him. It is true that I
have not recorded any note about the d.d. being read
over to the patient. It is true that when a patient is not in a
state of hearing or understanding, the above mentioned
note is not recorded in the d.d.. The doctor on duty was
Dr. Meghnathi. It is true that an endorsement that the
patient was in a fully conscious state during recording of
the d.d., was obtained after completion of the d.d.. It is
true that the endorsement of the doctor obtained after
completion of the d.d. states that, the patient is in a
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conscious state. The endorsement does not state that,
the patient was in a fully conscious state during the d.d..
It took about 40 minutes for me to complete the
procedure of the d.d.. It is not true that the time of starting
and completing the d.d. was not recorded in the hospital.
It is not true that the thumb impression is not of the
patient. The patient did not state “you set me on fire”. It is
not true that upon being asked as to what happened to
you, the patient did not state in my presence that, when I
was washing dishes, my husband came and my mother-
in-law instigated him and I set myself on fire. It is not true
that the patient had difficulty in breathing and was not in a
state to speak properly. I do not know as to in which
position the patient was lying. It is not true that the d.d.
was not recorded in the hospital and was recorded at the
behest of the police and the endorsements of the doctor
were obtained afterwards”.
10.6 Dying Declaration which is at Exh.39 is
reproduced as under:
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“Following the report dated 14/04/2003 of the
PSO of Maliya Police Station, I came to record d.d. of
Devuben Khimabhai of Mankadhar Gangecha village. The
patient has been admitted in Burns Ward of Maliya
Community Health Centre.
Before starting d.d., Dr. Meghnathi, the doctor on
duty states that the patient is in a fully conscious state
and able to give answers and therefore, the relatives of
the patient are told to leave the room and recording of
d.d. is started.
———————————————————————————–
The patient is fully
conscious.
14/04/2003
03:25 PM
Sd/- (illegible)The patient remained
conscious during d.d.
Sd/- (illegible)
Date - 14/04/2003Started at - 15:25 hours
(1) What is your name?
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- My name is Deviben.
(2) What is your husband's name?
- My husband's name is Khimabhai Lakhabha.
(3) What is the name of your village?- We live at Mankadhar Gangecha.
(4) What has happened to you?
- I have sustained burn injuries.
(5) How did you sustain burn injuries?
- When I was washing dishes, my husband came and
my mother-in-law instigated him that she instigates Pala,
the husband of our daughter Raji and has him beat her.
Therefore, my husband came to me and beat me and
told me, I am going to set you on fire. Therefore, I went
running in the room and poured kerosene over my body
and set myself on fire.
(6) When you set yourself on fire, who were present
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in the house and who extinguished fire caught by you?
- When I set myself on fire, all the family members
except my father-in-law were present. My father-in-law
had gone to Kareni village to attend a funeral. When I set
myself on fire, my sisters-in-law Sonalben and Maniben,
my mother-in-law Nathiben and my husband Khimabhai
were present. When I caught fire, all these family
members poured water on me and extinguished the fire.
(7) Who were torturing you?
- I was being tortured by my husband Khimabhai, my
parents-in-law and both the sisters-in-law. One of my
sisters-in-law Sonalben is unmarried. The other sister-in-
law Maniben has come to the house of my father-in-law
to spend her pregnancy period. The name of my mother-
in-law is Nathiben. The name of my father-in-law is
Lakhabhai.
(8) How long you have been married?- I have been married for about a year.
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(9) Do you have any child?
- No, I do not have any child.
(10) For how long you have discord with the family
members?
- Frequent disputes between me and the family
members used to take place just after my marriage and
the family members torture me frequently.
(11) Who brought you to the hospital?
- My husband Khimabhai and mother-in-law Nathiben
brought me to the Government Hospital in a chhakdo
rickshaw.
(12) Do you want to state anything apart from the
facts stated above?
- Apart from the facts stated above, I do not want to
state anything.
The d.d. is recorded as stated above and a right
thumb impression of Deviben Khimabhai, who dictated
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the d.d. is obtained below for the same".
THUMB IMPRESSION
Completed at - 16:05 hours
Before me,
Sd/- (illegible)
Executive Magistrate,
Maliya - Hatina.11. Error in assigning reason by the learned trial Court
while passing the judgment and order of the
acquittal.
Learned trial Court has evaluated the evidence of the
Executive Magistrate, namely, Bhimabhai Virabhai, who
was examined below Exh.37, and also scrutinized the
evidence of the PSI, Hasmukhlal Arjanbhai Ahir, who was
examined below Exh.54 together and from the aforesaid
evidence, the contradictions, which would be in the
nature of overlapping of timing comes on the record.
From the evidence of the Executive Magistrate regarding
dying declaration, it comes on record that he started
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recording the dying declaration at 15.25 hours to 16.05
hours. However, from the evidence of Exh.54, Police
Officer, it comes on the record that he recorded the
statement from 15.07 hours to 15.40 hours. Learned
trial Court had given more weightage to the time period
and comes to the conclusion that in the cross
examination of both these witnesses, they are denying
the presence of each other. Learned trial Court had not
disputed the contents of the dying declaration as from
the dying declaration, which was recorded below Exh.39
which consists an endorsement with regard to the fit
state of mind, while starting the recording of the dying
declaration and at the time of completion of dying
declaration, is found to have been satisfactorily
recorded. It comes from the evidence of the police
officer that while recording the statement of the
deceased, he did not mention the time and on what
basis this witness has stated the time of recording
statement from 15.07 hours to 15.40 hours and his
presence in the ward. One more aspect for discarding
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this evidence is that no one had identified the thumb
impression of the deceased, either in the dying
declaration or in the statement recorded by the police
officer. Learned trial Court has also relied on the
evidence of Jivabhai Naranbhai, who was examined
below Exh.63, who was the Investigating Officer and
stated that further statement of the brother of the
complainant was recorded wherein brother had
produced the copy of the affidavit, which was notarized
on Rs.20/- Judicial Stamp Paper sworn by the deceased
and further statement of the deceased recorded in the
burns ward wherein, she states that, as during the noon
hours, the deceased was taken to the Hospital in the
open rickshaw, she became annoyed and stated the
name of the father in-law, Lakhabhai, one sister in-law,
however, they were not involved in the offence and they
are innocent. It is to be noted that this statement is not
part of the evidence. Learned trial Court has also not
believed the MLC case papers, which were produced
through the evidence of Dr.Meghnathi, who was
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examined below Exh.40 wherein, in the history given by
the deceased, she states that due to the harassment
made by in-laws and due to the instigation, husband
used to beat her, therefore, she committed suicide by
pouring the kerosene, on the ground that below the said
endorsement, there was no any signature or the thumb
impression of the complainant / deceased. Learned trial
Court also disbelieved the Medical Certificate issued
below Exh.31 issued by Dr.Pandya, who was examined
below Exh.26, wherein, the history was recorded on the
ground that it was written from the blue pen and
remaining part was written with black pen. On that
ground also, learned trial Court disbelieved the case of
the prosecution and discarded the evidence, which is in
the nature of dying declaration. Learned trial Court
further observed in the judgment that from the evidence
of the mother of the deceased, who was examined
below Exh.52, it comes on record that the deceased was
suffering from mental illness and her treatment was
going on. The brother of the deceased had also deposed
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that there was no any harassment on the part of in-laws
to the deceased On that ground, the learned trial Court
passed the judgment and order of acquittal by observing
that there was no any ingredients, which satisfies the
offence of Section 107 and Section 498-A of the IPC
established by prosecution and therefore, accused were
acquitted from the charges.
This Court has closely scrutinized all the evidence on
record and reason assigned by the trial Court. This Court
has re-appreciated the evidence as under:
12. Medical evidence
(i) From the evidence of PW-5, Dr.Rameshgiri
Meghnathi, who was examined below Exh.40, it comes
on the record that on 14.4.2003, the deceased was
brought at Maliya Hatina Samuhik Arogya Kendra (CHC)
at around 2.30 in the noon. This witness further deposed
that complainant / deceased received the burn injuries
on 14.4.2003 at around 1.30 p.m. She received 75%
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burn injuries and also produced in door case papers,
which were exhibited below Exh.43. In the medical
papers, which was produced below Exh.43, she gave her
history that there was harassment from mother in-law,
father in-law husband and sister in-law and due to the
instigation, husband used to beat her and she herself
had set on a fire and received the burn injuries. Time,
which is mentioned in the aforesaid case paper, is 2.30
p.m. on 14.4.2003. Age of the deceased was mentioned
as 20 years. Thereafter, it is mentioned that patient was
transferred to Civil Hospital, Junagadh. He further
deposed in the statement that when the police came to
record the statement, he was present with the
deceased. He further states that though the deceased
was in serious condition but was conscious and that fact
is also mentioned in the case papers. It is further
deposed that in Exh.39, which is dying declaration, two
endorsements were made, first at the time of starting of
recording of the dying declaration and another is on
completion of the dying declaration. These undisputed
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facts are not controverted during the cross examination
of this witness. With regard to the timing, he deposed in
the cross examination that the Executive Magistrate had
started the recording of dying declaration at 15.25
hours, however, at what time police officer came, that
he cannot say.
(ii) The another witness, who was examined at PW-
1, Atulkumar Chandulal Kubavat, below Exh.13, which
was the Medical Officer serving at Junagadh Civil
Hospital, He deposed in his evidence that at 5 O'clock,
patient came with a refer note of CHC, Maliya Hatina
with history of burn injuries. On examining, it was found
that she is having pregnancy of 5 months. History was
recorded that on 14.4.2003 around 2 o'clcok, she
received the burn injuries at Gagesha Village He
produced the case papers below Exh.15 wherein, the
endorsement was made that dying declaration has
already recorded. Nothing much comes on the record
with evidence of this witness except the fact that she
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received the serious injuries. This witness had further
referred the patient i.e. deceased to Rajkot Civil Hospital
on 16.4.2003.
(iii) Next witness, which was examined, is Dr.Jayant
Hariprasad Pandya, PW-3, Exh.26 serving as Medical
Officer at Junagadh. From the evidence of this witness,
the facts come on the record that her pregnancy was
terminated with the consent of the relatives on
18.4.2003 because of 70% deep burn injuries. She was
having the second and third degree burns and died on
20.4.2003 at 8.15 hours in the night.
(iv) The next witness is examined is Dr.Sudhaben
Kantilal Shah PW-2 Exh.22. In chief examination, in
addition to the grievous burn injuries, she mentioned
that from the body, there was a smell of kerosene. She
had conducted the postmortem on 21st April, 2003
during 7.00 hours upto 8.30 hours.
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13. Police Witness:
(I) Prosecution examined Hasmukhbhai Ahir below
Exh.54, PW-11, who was serving as PSI at Maliya Hatina
Police Station. He deposed in his evidence that on
14.4.2003, at 15.00 hours, he received the yadi from
the CHC Hospital from Dr.Meghnathi with regard to
admission of the patient receiving the burn injuries. On
receiving the Yadi, entry was made in the station diary
by the PSO, Mr.R.S.Babariya. He along with the writer-
constable, Naranbhai went to the Hospital on his private
motorcycle. On making inquiry, it was informed by the
Doctor that she is conscious and able to give the
complaint. The complaint was recorded and thereafter,
it was read to the deceased and endorsement was
made by the Medical Officer with regard to the
consciousness of the deceased. On coming back to the
Police Station at around 16.00 hours, the entry was
made in the station diary as this offence was falling
under the territory of Keshod Police Station by the zero
number FIR registered being No. FIR 00/2003 under
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Section 498-A of the IPC. The papers were transferred to
the Keshod Police Station and he produced the copy of
the FIR below Exh.56. From the cross-examination, it
comes on the record that he had not recorded the time
regarding completion of the statement. Complaint was
recorded by the writer Naranbhai. From 15.07 hours to
15.40 hours, he was in the burns ward. Upto he left the
burns ward, he did not see that Executive Magistrate
had come there. Before recording the statement, he had
not taken the endorsement with regard to
consciousness of mind of Dr.Meghnathi. He did not
record the time of recording the statement. He had not
taken signature to identify the thumb impression of the
deceased Devuben. FIR below Exh.56 wherein the
statement of the deceased Devuben was produced by
this witness wherein, she had narrated that the
marriage of the sister in-law of the complainant,
namely, Rajiben was solemnized with the brother of the
complainant, namely, Palabhai under the guise that
Rajiben is facing the harassment at the in-laws house
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from last one year i.e.from the marriage, they were
harassing and torturing to the complainant and giving
the threats to set on a fire On the day of the incident, all
the in-laws were present at aground 1.00 o'clock and
again the quarrel was taken place for the same reason
and the husband stated that I set you on fire and
therefore, in reply to that, complainant stated that it is
better that I set myself on fire and she went to the room
and poured the kerosene and ignited matchstick and set
ablaze as this harassment went beyond the tolerance
level, she committed suicide. She stated that I
understand the question which was put before me and I
am in conscious state of mind.
(ii) The next witness, who was examined, was
Chanabhai Arjanbhai Chudasama below Exh.59, PW-12,
who was serving as PSO, Keshod Police Station and
recorded the FIR at around 19.15 hours on 14.4.2003.
(iii) The another witness, namely, Jivabhai
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Naranbhai Ram, was examined, who was Investigating
Officer below Exh.63 as PW-13, has drawn the
panchnama of place of offence, collected the material,
recorded further statement of the complainant and had
filed the charge-sheet. From the cross examination of
this witness, the defence had put the suggestion that in
further statement, the complainant had withdrawn
name of father in-law and one sister in-law, namely,
Sonalben, however, said statements are not produced
during the trial.
14. Dying Declaration
The Executive Magistrate was examined below
Exh.37, PW-4, namely, Bhimabhai, Virabhai whose
whole evidence is reproduced at earlier stage of the
judgment.
During the cross examination, defence has tried to
put much emphasize with regard to inquiry about the
education qualification of the deceased, and in which
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circumstances, the thumb impression was taken, is not
clarified from the deposition of all Medical Officers, it
comes on record that she received burn injuries on
whole body, therefore, even if, she is literate, she would
not be in a position to sign but that aspect would not
loose credibility of dying declaration. However, no any
inconsistency in the version of complainant found in
dying declaration could be proved by the defence during
the cross examination.
15. Evidence of Relatives Witnesses.
(I) Prosecution examined PW-8 Palabhai brother of
the deceased and brother in-law of the accused. He was
declared hostile and not supported the case of the
prosecution.
(ii) The next witness, who was examined i.e.
another brother, namely, Punjabhai Lakhabhai, PW-9,
Exh.50. From the evidence of this witness, in chief
examination, he deposed that in the Hospital in the
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presence of the husband and mother in-law, the sister
had disclosed that my mother in-law, husband and
Maniben were harassing. However, she did not depose
with regard to the reasons of the harassment. In the
cross examination conducted by the defence, he
deposed that treatment with regard to the mental
illness, which was going on of the deceased.
(iii) The another witness, namely, mother of the
deceased was examined below Exh.52, PW-10, Somiben
wife of Dhakhabhai though she had not supported the
case of the prosecution but in the cross examination
conducted by the APP, she admitted that whenever the
daughter used to visit to the house, she was
complaining with regard to the harassment at the end of
in-laws on the ground that sister in-law, Rajiben is facing
harassment from the house of her in-laws. She further
admits that deceased had disclosed in the Hospital that
today at noon hours around 1 O'clcok, the husband,
mother in-law and Maniben have told that your brother
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is harassing to the Rajiben i.e. sister in-law and
therefore, they want to set on a fire. In reply to that,
Devuben, i.e. the deceased told that instead of you set
me on fire I set myself on a fire and she poured the
kerosene on herself and set ablaze as she was declared
hostile.
From the evidence of relatives of deceased,
prosecution tried to establish that deceased was
suffering from mental illness, however, no any
contemporaneous record produced by the accused to
establish the same. One more aspect is to be noticed
that the sister in law of the deceased is wife of brother
of deceased, therefore, to save marriage of son, mother
brother did not support the case but in the cross
examination, she admitting and disclosure made by
deceased about incident and harassment in the hospital.
16. On analyzing the circumstances and in view of this Court,
the prosecution clearly establishes that deceased had been
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subjected to physical and mental torture all through out. From
the evidence on record, it suggests that mother in-law, sister in-
law and husband had abused to the deceased and given the
cruel treatment on the ground that sister of the husband is
meeting with said treatment at the house of parents of the
deceased. Newly wedded wife aged about 20 years was
physically assaulted by the husband on number of occasions.
Husband instead of protecting against the act of mental torture
and humiliation, treated the wife with cruelty and also physically
assaulted her. Such acts of the husband in the view of this Court
were sufficient to destroy the normal frame of the mind of the
deceased and to drive her to frustration and mental agony and
to end her life by committing suicide. Therefore, in the opinion
of the Court, the husband is responsible for the death of the
deceased wife.
17. The principle governing the dying declaration enumerated
by the Hon'ble Apex Court in various cases are stated herein
below:
(i) There is neither Rule of Law nor the prudence that dying
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declaration cannot be acted upon without corroboration.
(ii) If the Court is satisfied that dying declaration is true and
voluntary it can base conviction on it, without
corroboration.
(iii) The Court has to scrutinize the dying declaration
carefully and must ensure that declaration is not the
result of tutoring, prompting or imagination. The
deceased had opportunity to observe and identify the
assailant and was in fit state to make the declaration.
(iv) Where dying declaration is suspicious, it should not be
acted upon without corroborative evidence.
(v) Where deceased was unconscious and could never make
any dying declaration, the evidence with regard to it is
to be rejected.
(vi) The dying declaration which suffers from infirmity
cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain the
details as to the occurrence, it is not to be rejected.
(viii) Equally, merely because it is a brief statement, it is not
to be discarded. On the contrary, the shortness of the
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statement itself guarantees truth.
(ix) Normally, the Court in order to satisfy whether deceased
was in fit mental condition to make the dying
declaration has to look to the medical opinion. But
where the eye-witness has stated that deceased was in
fit and conscious state to make the dying declaration,
medical opinion cannot prevail.
(x) Where the prosecution version defers from the version
as given in the dying declaration, the said dying
declaration cannot be acted upon.
(xi) Where there are more than one statement in the nature
of dying declaration, one first in point of time must be
preferred. Of course, if the plurality of the dying
declaration could be held to be trustworthy and reliable
it has to be accepted.
18. What impress the Court about the dying declaration is that,
firstly it has been reocrded by an independent witness like
Dr.Meghnathi, Medical Officer, Maliya Hatina, Community Health
Center and Executive Magistrate and secondly before dying
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declaration commenced by Executive Magistrate, the Magistrate
had satisfied himself about capability of Deveiben to make dying
declaration. There is endorsement obtained of Dr.Meghnathi. So
far as the reasons stated by the learned trial Court that time is
overlapping and no signature identifying the thumb impression
was made, is palpably wrong and against the evidence on
record. It comes on record that no any contemporaneous record
produced by the police officer, which suggests that time is
overlapping. The learned trial Court should not have been relied
on and concluded that because of overlapping time, dying
declaration lost is truthfulness. Learned trial Court otherwise has
not disputed the contents of the dying declaration as it is
corroborated further with the history before the medical officer,
police statement, and from the evidence of the mother before
whom the deceased had declared the incident. Authenticity,
which would otherwise found reliable, could not have been
discarded on these minor discrepancies.
19. This Court has also gone through the law laid down by
Hon'ble Apex Court in the case of Atbir V/s. Government of
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NCT of Delhi reported in (2010) 9 SCC 1 and Surinder
Kumar V/s. State of Haryana reported in AIR 1992 SC
2037 and comes to the conclusion that dying declaration is
inspiring full confidence and had passed all the tests, which are
narrated by Hon'ble Apex Court in the above mentioned cases
and therefore, that can be base for the conviction.
20. Now for attracting provision of Section 306 ingredient of
Section 107 is to be satisfied. So far as abetment is concerned,
the requirement, which is mentioned under Section 107 is that
(1) Instigating a person to commit an offence (2) Engaging in
conspiracy to commit it or (3) intentionally adding a person to
commit it. Whether there is an instigation under Section 107 or
not is a question to be decided considering facts of instant case.
It is not necessary in law for the prosecution to prove the actual
operative cause in the mind of the person abated was to
instigation, and nothing else, so long as there was an instigation
and offence has been committed or offence would have been
committed, if the person omitting the act had the same
knowledge and intention as the abettor. It is impossible for any
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human to decide exactly how much instigation actually weighed
in the mind of the person abated, when he committed the act or
the offence.
21. In Chitresh Kumar Chopra v. State (Government of
NCT of Delhi), AIR 2010 SC 1446, this Court while dealing
with the term 'instigation' held: "Instigation is to goad, urge
forward, provoke, incite or encourage to do "an act". To satisfy
the requirement of "instigation", though it is not necessary that
actual words must be used to that effect or what constitutes
"instigation" must necessarily and specifically be suggestive of
the consequence. Yet a reasonable certainty to incite the
consequence must be capable of being spelt out. Where the
accused had, by his acts or omission or by a continued course of
conduct, created such circumstances that the deceased was left
with no other option except to commit suicide, in which case, an
"instigation" may have to be inferred. A word uttered in a fit of
anger or emotion without intending the consequences to actually
follow, cannot be said to be instigation. Thus, to constitute
'instigation', a person who instigates another has to provoke,
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incite, urge or encourage the doing of an act by the other by
"goading" or 'urging forward'. The dictionary meaning of the
word "goad" is "a thing that stimulates someone into action;
provoke to action or reaction to keep irritating or annoying
somebody until he reacts."
22. Keeping in mind above ration, if the Court examines the
allegation made by the deceased is that (i) there was an inter
exchange marriage of the deceased and sister in-law, (ii) under
the guise that sister in-law, was harassed by the parents and
brother of the deceased (iii) she was continuously harassed from
the inception i.e. from the date of marriage. (iv) She was beaten
on that ground on various occasion. (v) On fateful day, there was
quarrel of deceased with husband and in-laws. (vi) Husband
conveyed deceased that he would set on fire (vii) deceased
replied Instead of you set me fire, let me set fire to myself (viii)
she committed suicide.
23. Each person has his own self esteem and self respect when
harassment went beyond the tolerance level, she had no option
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except to put an end to her life by committing the suicide.
Therefore, this Court is of the view that husband is responsible
for the suicide of the wife.
24. Considering these evidences of the witnesses, this Court
found that there was no any inconsistency in the evidence of (i)
the history before the Medical Officer, which was produced below
Exh.43, (ii) statement before the Police Officer recorded below
Exh.58 and (iii) dying declaration, which was produced below
Exh.39, at all places, version, which is mentioned, is absolutely in
consistence manner.
25. This Court is conscious of the fact that this being an
acquittal appeal, unless judgment is not found perverse, it
cannot be interfered with. With regard to this Court, scope of
Appeal filed against the Acquittal, this Court has gone through
judgment in the case of Jafarudheen and others V/s. State of
Kerala reported in (2022) 8 SCC 440. The Hon'ble Apex Court
observed as under:
25. While dealing with an appeal against acquittal by invoking
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Section 378 of the Cr.PC, the Appellate Court has to consider
whether the Trial Court's view can be termed as a possible one,
particularly when evidence on record has been analyzed. The
reason is that an order of acquittal adds up to the presumption of
innocence in favour of the accused. Thus, the Appellate Court has
to be relatively slow in reversing the order of the Trial Court
rendering acquittal.Therefore, the presumption in favour of the accused does not get
weakened but only strengthened. Such a double presumption that
enures in favour of the accused has to be disturbed only by
thorough scrutiny on the accepted legal parameters. Precedents:Mohan @Srinivas @Seena @Tailor Seena v. State of
Karnataka, [2021 SCC Online SC 1233] as hereunder: -"20. Section 378 CrPC enables the State to prefer an appeal
against an order of acquittal. Section 384 CrPC speaks of the
powers that can be exercised by the Appellate Court. When
the trial court renders its decision by acquitting the accused,
presumption of innocence gathers strength before the
Appellate Court. As a consequence, the onus on the
prosecution becomes more burdensome as there is a double
presumption of innocence. Certainly, the Court of first
instance has its own advantages in delivering its verdict,
which is to see the witnesses in person while they depose.
The Appellate Court is expected to involve itself in a deeper,
studied scrutiny of not only the evidence before it, but is duty
bound to satisfy itself whether the decision of the trial court is
both possible and plausible view. When two views are
possible, the one taken by the trial court in a case of acquittal
is to be followed on the touchstone of liberty along with the
advantage of having seen the witnesses. Article 21 of the
Constitution of India also aids the accused after acquittal in a
certain way, though not absolute. Suffice it is to state that the
Appellate Court shall remind itself of the role required to play,
while dealing with a case of an acquittal.21. Every case has its own journey towards the truth and it is
the Court's role undertake. Truth has to be found on the
basis of evidence available before it. There is no room for
subjectivity nor the nature of offence affects its performance.
We have a hierarchy of courts in dealing with cases. An
Appellate Court shall not expect the trial court to act in a
particular way depending upon the sensitivity of the case.
Rather it should be appreciated if a trial court decides a case
on its own merit despite its sensitivity.22. At times, courts do have their constraints. We find,
different decisions being made by different courts, namely,Page 71 of 84
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trial court on the one hand and the Appellate Courts on the
other. If such decisions are made due to institutional
constraints, they do not augur well. The district judiciary is
expected to be the foundational court, and therefore, should
have the freedom of mind to decide a case on its own merit
or else it might become a stereotyped one rendering
conviction on a moral platform.Indictment and condemnation over a decision rendered, on
considering all the materials placed before it, should be
avoided. The Appellate Court is expected to maintain a
degree of caution before making any remark.23. This court, time and again has laid down the law on the
scope of inquiry by an Appellate court while dealing with an
appeal against acquittal under Section 378 CrPC. We do not
wish to multiply the aforesaid principle except placing
reliance on a recent decision of this court in Anwar Ali v.
State of Himanchal Pradesh, (2020) 10 SCC 166 :
14.2. When can the findings of fact recorded by a court be
held to be perverse has been dealt with and considered in
paragraph 20 of the aforesaid decision, which reads as under
: (Babu case [ Babu v. State of Kerala, (2010) 9 SCC 189 :
(2010) 3 SCC (Cri) 1179 ])
"20. The findings of fact recorded by a court can be held to
be perverse if the findings have been arrived at by ignoring
or excluding relevant material or by taking into consideration
irrelevant/inadmissible material. The finding may also be said
to be perverse if it is "against the weight of evidence", or if
the finding so outrageously defies logic as to suffer from the
vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi
Admn. [ Rajinder Kumar Kindra v. Delhi Admn., (1984) 4
SCC 635:1985 SCC (LS) 131 ], Excise Taxation Officer-cum-Assessing Authority v. Gopi Nath Sons [ Excise
Taxation Officer-cum-Assessing Authority v. Gopi Nath
Sons, 1992 Supp (2) SCC 312 ], Triveni Rubber
Plastics v. CCE [ Triveni Rubber Plastics v. CCE, 1994
Supp (3) SCC 665 ], Gaya Din v. Hanuman Prasad [ Gaya
Din v. Hanuman Prasad, (2001) 1 SCC 501 ], Aruvelu
[ Arulvelu v. State, (2009) 10 SCC 206 : (2010) 1 SCC (Cri)
288 ] and Gamini Bala Koteswara Rao v. State of A.P.
[ Gamini Bala Koteswara Rao v. State of AP, (2009) 10
SCC 636 : (2010) 1 SCC (Cri) 372 ])"It is further observed, after following the decision of this Court
in Kuldeep Singh v. Commr. of Police [ Kuldeep Singh v.
Commr. of Police, (1999) 2 SCC 10 : 1999 SCC (LS)
429 ], that if a decision is arrived at on the basis of noPage 72 of 84
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evidence or thoroughly unreliable evidence and no
reasonable person would act upon it, the order would be
perverse. But if there is some evidence on record which is
acceptable and which could be relied upon, the conclusions
would not be treated as perverse and the findings would not
be interfered with.14.3. In the recent decision of Vijay Mohan Singh [ Vijay
Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 :(2019) 2 SCC (Cri) 586 ], this Court again had an occasion
to consider the scope of Section 378 CrPC and the
interference by the High Court [ State of Karnataka v. Vijay
Mohan Singh, 2013 SCC Online Kar 10732 ] in an appeal
against acquittal. This Court considered a catena of
decisions of this Court right from 1952 onwards. In para 31, it
is observed and held as under:"31. An identical question came to be considered before this
Court in Umedbhai Jadavbhai [ Umedbhai Jadavbhai v.
State of Gujarat, (1978) 1 SCC 228 : 1978 SCC (Cri) 108 ].
In the case before this Court, the High Court interfered with
the order of acquittal passed by the learned trial court on
reappreciation of the entire evidence on record. However, the
High Court, while reversing the acquittal, did not consider the
reasons given by the learned trial court while acquitting the
accused. Confirming the judgment of the High Court, this
Court observed and held in para 10 as under:'10. Once the appeal was rightly entertained against the
order of acquittal, the High Court was entitled to reappreciate
the entire evidence independently and come to its own
conclusion. Ordinarily, the High Court would give due
importance to the opinion of the Sessions Judge if the same
were arrived at after proper appreciation of the evidence.
This rule will not be applicable in the present case where the
Sessions Judge has made an absolutely wrong assumption
of a very material and clinching aspect in the peculiar
circumstances of the case.'
31.1. In Sambasivan [ Sambasivan v. State of Kerala,
(1998) 5 SCC 412 : 1998 SCC (Cri) 1320 ], the High Court
reversed the order of acquittal passed by the learned trial
court and held the accused guilty on reappreciation of the
entire evidence on record, however, the High Court did not
record its conclusion on the question whether the approach
of the trial court in dealing with the evidence was patently
illegal or the conclusions arrived at by it were wholly
untenable. Confirming the order passed by the High Court
convicting the accused on reversal of the acquittal passed by
the learned trial court, after being satisfied that the order ofPage 73 of 84
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acquittal passed by the learned trial court was perverse and
suffered from infirmities, this Court declined to interfere with
the order of conviction passed by the High Court. While
confirming the order of conviction passed by the High Court,
this Court observed in para 8 as under:'8. We have perused the judgment under appeal to ascertain
whether the High Court has conformed to the
aforementioned principles. We find that the High Court has
not strictly proceeded in the manner laid down by this Court
in Doshi case [ Ramesh Babulal Doshi v. State of Gujarat,
(1996) 9 SCC 225 : 1996 SCC (Cri) 972 ] viz. first recording
its conclusion on the question whether the approach of the
trial court in dealing with the evidence was patently illegal or
the conclusions arrived at by it were wholly untenable, which
alone will justify interference in an order of acquittal though
the High Court has rendered a well-considered judgment
duly meeting all the contentions raised before it. But then will
this non-compliance per se justify setting aside the judgment
under appeal? We think, not. In our view, in such a case, the
approach of the court which is considering the validity of the
judgment of an appellate court which has reversed the order
of acquittal passed by the trial court, should be to satisfy
itself if the approach of the trial court in dealing with the
evidence was patently illegal or conclusions arrived at by it
are demonstrably unsustainable and whether the judgment of
the appellate court is free from those infirmities; if so to hold
that the trial court judgment warranted interference. In such a
case, there is obviously no reason why the appellate court's
judgment should be disturbed. But if on the other hand the
court comes to the conclusion that the judgment of the trial
court does not suffer from any infirmity, it cannot but be held
that the interference by the appellate court in the order of
acquittal was not justified; then in such a case the judgment
of the appellate court has to be set aside as of the two
reasonable views, the one in support of the acquittal alone
has to stand. Having regard to the above discussion, we
shall proceed to examine the judgment of the trial court in
this case.'
31.2. In K. Ramakrishnan Unnithan [ K. Ramakrishnan
Unnithan v. State of Kerala, (1999) 3 SCC 309: 1999 SCC
(Cri) 410 ], after observing that though there is some
substance in the grievance of the learned counsel appearing
on behalf of the accused that the High Court has not
adverted to all the reasons given by the trial Judge for
according an order of acquittal, this Court refused to set
aside the order of conviction passed by the High Court after
having found that the approach of the Sessions Judge inPage 74 of 84
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recording the order of acquittal was not proper and the
conclusion arrived at by the learned Sessions Judge on
several aspects was unsustainable. This Court further
observed that as the Sessions Judge was not justified in
discarding the relevant/material evidence while acquitting the
accused, the High Court, therefore, was fully entitled to
reappreciate the evidence and record its own conclusion.This Court scrutinised the evidence of the eyewitnesses and
opined that reasons adduced by the trial court for discarding
the testimony of the eyewitnesses were not at all sound. This
Court also observed that as the evaluation of the evidence
made by the trial court was manifestly erroneous and
therefore it was the duty of the High Court to interfere with an
order of acquittal passed by the learned Sessions Judge.
31.3. In Atley [ Atley v. State of U.P., AIR 1955 SC 807 :1955 Cri LJ 1653 ], in para 5, this Court observed and held
as under:'5. It has been argued by the learned counsel for the
appellant that the judgment of the trial court being one of
acquittal, the High Court should not have set it aside on mere
appreciation of the evidence led on behalf of the prosecution
unless it came to the conclusion that the judgment of the trial
Judge was perverse. In our opinion, it is not correct to say
that unless the appellate court in an appeal under Section
417 CrPC came to the conclusion that the judgment of
acquittal under appeal was perverse it could not set aside
that order.It has been laid down by this Court that it is open to the High
Court on an appeal against an order of acquittal to review the
entire evidence and to come to its own conclusion, of course,
keeping in view the well-established rule that the
presumption of innocence of the accused is not weakened
but strengthened by the judgment of acquittal passed by the
trial court which had the advantage of observing the
demeanour of witnesses whose evidence have been
recorded in its presence.It is also well settled that the court of appeal has as wide
powers of appreciation of evidence in an appeal against an
order of acquittal as in the case of an appeal against an
order of conviction, subject to the riders that the presumption
of innocence with which the accused person starts in the trial
court continues even up to the appellate stage and that the
appellate court should attach due weight to the opinion of the
trial court which recorded the order of acquittal.
If the appellate court reviews the evidence, keeping thosePage 75 of 84
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principles in mind, and comes to a contrary conclusion, the
judgment cannot be said to have been vitiated. (See in this
connection the very cases cited at the Bar, namely, Surajpal
Singh v. State [ Surajpal Singh v. State, 1951 SCC 1207 :AIR 1952 SC 52 ]; Wilayat Khan v. State of U.P. [ Wilayat
Khan v. State of UP., 1951 SCC 898 : AIR 1953 SC 122 ])
In our opinion, there is no substance in the contention raised
on behalf of the appellant that the High Court was not
justified in reviewing the entire evidence and coming to its
own conclusions.'
31.4. In K. Gopal Reddy [ K. Gopal Reddy v. State of A.P.,
(1979) 1 SCC 355 : 1979 SCC (Cri) 305 ], this Court has
observed that where the trial court allows itself to be beset
with fanciful doubts, rejects creditworthy evidence for slender
reasons and takes a view of the evidence which is but barely
possible, it is the obvious duty of the High Court to interfere
in the interest of justice, lest the administration of justice be
brought to ridicule.". N. Vijayakumar v. State of T.K, [(2021) 3 SCC 687] as
hereunder: -"20. Mainly it is contended by Shri Nagamuthu, learned
Senior Counsel appearing for the appellant that the view
taken by the trial court is a "possible view", having regard to
the evidence on record. It is submitted that the trial court has
recorded cogent and valid reasons in support of its findings
for acquittal. Under Section 378 CrPC, no differentiation is
made between an appeal against acquittal and the appeal
against conviction. By considering the long line of earlier
cases this Court in the judgment in Chandrappa v. State of
Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325 has
laid down the general principles regarding the powers of the
appellate Court while dealing with an appeal against an order
of acquittal. Para 42 of the judgment which is relevant reads
as under: (SCC p. 432)
"42. From the above decisions, in our considered view, the
following general principles regarding powers of the appellate
court while dealing with an appeal against an order of
acquittal emerge:(1) An appellate court has full power to review, reappreciate
and reconsider the evidence upon which the order of
acquittal is founded.(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an
appellate court on the evidence before it may reach its own
conclusion, both on questions of fact and of law.Page 76 of 84
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(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient grounds", "very
strong circumstances", "distorted conclusions", "glaring
mistakes", etc. are not intended to curtail extensive powers of
an appellate court in an appeal against acquittal. Such
phraseologies are more in the nature of "flourishes of
language" to emphasise the reluctance of an appellate court
to interfere with acquittal than to curtail the power of the court
to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of the
accused. Firstly, the presumption of innocence is available to
him under the fundamental principle of criminal jurisprudence
that every person shall be presumed to be innocent unless
he is proved guilty by a competent court of law. Secondly,
the accused having secured his acquittal, the presumption of
his innocence is further reinforced, reaffirmed and
strengthened by the trial court.(5) If two reasonable conclusions are possible on the basis of
the evidence on record, the appellate court should not disturb
the finding of acquittal recorded by the trial court."21. Further in the judgment in Murugesan [ Murugesan v.
State, (2012) 10 SCC 383: (2013) 1 SCC (Cri) 69 ] relied on
by the learned Senior Counsel for the appellant, this Court
has considered the powers of the High Court in an appeal
against acquittal recorded by the trial court. In the said
judgment, it is categorically held by this Court that only in
cases where conclusion recorded by the trial court is not a
possible view, then only the High Court can interfere and
reverse the acquittal to that of conviction. In the said
judgment, distinction from that of "possible view" to
"erroneous view" or "wrong view" is explained. In clear terms,
this Court has held that if the view taken by the trial court is a
"possible view", the High Court not to reverse the acquittal to
that of the conviction.xxx xxx xxx
23. Further, in Hakeem Khan v. State of M.P., (2017) 5
SCC 719 : (2017) 2 SCC (Cri) 653 this court has considered
the powers of the appellate court for interference in cases
where acquittal is recorded by the trial court. In the said
judgment it is held that if the "possible view" of the trial court
is not agreeable for the High Court, even then such "possible
view" recorded by the trial court cannot be interdicted. It is
further held that so long as the view of the trial court can be
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agrees with the same or not, verdict of the trial court cannot
be interdicted and the High Court cannot supplant over the
view of the trial court. Para 9 of the judgment reads as under:(SCC pp. 722-23)
"9. Having heard the learned counsel for the parties, we are
of the view that the trial court's judgment is more than just a
possible view for arriving at the conclusion of acquittal, and
that it would not be safe to convict seventeen persons
accused of the crime of murder i.e. under Section 302 read
with Section 149 of the Penal Code. The most important
reason of the trial court, as has been stated above, was that,
given the time of 6.30 p.m. to 7.00 p.m. of a winter evening, it
would be dark, and, therefore, identification of seventeen
persons would be extremely difficult. This reason, coupled
with the fact that the only independent witness turned hostile,
and two other eyewitnesses who were independent were not
examined, would certainly create a large hole in the
prosecution story. Apart from this, the very fact that there
were injuries on three of the accused party, two of them
being deep injuries in the skull, would lead to the conclusion
that nothing was premeditated and there was, in all
probability, a scuffle that led to injuries on both sides. While
the learned counsel for the respondent may be right in
stating that the trial court went overboard in stating that the
complainant party was the aggressor, but the trial court's
ultimate conclusion leading to an acquittal is certainly a
possible view on the facts of this case. This is coupled with
the fact that the presence of the kingpin Sarpanch is itself
doubtful in view of the fact that he attended the Court at
some distance and arrived by bus after the incident took
place."24. By applying the abovesaid principles and the evidence on
record in the case on hand, we are of the considered view
that having regard to material contradictions which we have
already noticed above and also as referred to in the trial
court judgment, it can be said that acquittal is a "possible
view". By applying the ratio as laid down by this Court in the
judgments which are stated supra, even assuming another
view is possible, same is no ground to interfere with the
judgment of acquittal and to convict the appellant for the
offence alleged. From the evidence, it is clear that when the
Inspecting Officer and other witnesses who are examined on
behalf of the prosecution, went to the office of the appellant-
accused, the appellant was not there in the office and office
was open and people were moving out and in from the office
of the appellant. It is also clear from the evidence of PWs 3,
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from the drawer of the table by the appellant at their
instance. There is also no reason, when the tainted notes
and the cellphone were given to the appellant at 5.45 p.m. no
recordings were made and the appellant was not tested by
PW 11 till 7.00 p.m."26. In view of above, this Court comes to the conclusion that
finding recorded by the learned trial Court was patently illegal
and conclusion arrived at by it were wholly untenable and the
judgment of the acquittal passed by the learned trial Court
suffers from infirmities. Therefore, judgment and order of the
acquittal deserves to be set aside and acquittal recorded by the
learned trial Court deserves to be reversed. Therefore, this
appeal is required to be partly allowed qua Respondent No.1 and
this Court holds that accused No.1 is required to be convicted for
the offence punishable under Sections 498-A and 306 of the IPC.
27. This Court is conscious of the fact that 20 years has been
passed but when finding and reasons assigned by the learned
trial Court found against evidence, lapse of time would not be
aspect for consideration as same would amount to injustice to
victim.
28. In view of above, this Court comes to the conclusion that
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there would not be any other view except to convict the accused
N.1 for the charges leveled against him and therefore, this
appeal requires to be partly allowed as aforesaid qua accused
No.1 and remaining part of the judgment and order passed by
the Court below shall remain unaltered.
29. In view of this, appeal is partly allowed and for the hearing
of sentence to accused No.1, the matter is kept on 12 th January,
2024.
FURTHER ORDER, Dated : 12.01.2024:-
30. Heard Mr. Param Buch, learned advocate for the
respondents on the point of sentence and learned APP for the
appellant - State.
31. The respondent no.1 viz. Khimabhai Lakhmanbhai Charan
is also present before the Court. The mitigating circumstances,
which are produced by the respondent no.1 in the form of
affidavit, are mentioned herein-below.
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(i) The incident took place before more than 20 years
ago.(ii) The respondent no.1 re-married to one Sumiben.
Out of the wedlock, three minor son and one minor
daughter are born. The age of the kids are - Mehul - aged
about 14 years; Karan - aged about 12 years; Rajshree -
aged about 09 years and Madhav - aged about 03 years.(iii) The responsibilities of the minor sons and
daughter, wife and ailing mother are on the accused, who
is doing the agricultural work.(iv) The respondent no.1 also suffering from
Tuberculosis and taking two insulin per day.(v) The respondent - accused no.1 remained in
custody for 01 years and 07 months.(vi) No any antecedent against the respondent -
accused.32. As against the aforesaid submission, learned APP submits
that as this Court has convicted the respondent - accused for the
offence punishable under Section-498A of the IPC, wherein, the
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maximum punishment is provided for 03 years and for the
offence punishable under Section-306 of the IPC, the
imprisonment is provided upto 10 years, this Court may award
maximum punishment considering the marriage span of the
deceased i.e. below 01 years and age of the deceased i.e. 20
years, considering the same, Learned APP requested to impose
maximum punishment.
33. Considering the submission made by the learned advocate
for the respective parties and considering the overall
circumstances, this Court deem it fit to pass the following final
order:-
::FINAL ORDER::
(1) The respondent no.1 is hereby convicted for the offence
punishable under Section-498A and is ordered to undergo
Rigorous imprisonment of 06 months and fine of Rs.1,000/-, in
default of fine, further period of 01 month simple imprisonment.
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(2) The respondent no.1 is further convicted for the offence
punishable under Section-306 of IPC and is ordered to undergo
Rigorous imprisonment of 02 years and fine of Rs.2,000/-, in
default of fine, further period of 01 month simple imprisonment.
(3) All the sentences are ordered to run concurrently. The
sentence already undergone by the respondent no.1 - accused is
ordered to be given set off.
(4) The respondent no.1 is directed to surrender to custody
within period of 10 weeks to serve remaining sentence, failing
which, the Sessions Judge concerned is at liberty to issue warrant
to secure the custody of the respondent no.1 - accused.
(5) Registry to make available a copy of this judgment to the
learned advocate for the respondent no.1 - accused and the
learned APP as well as to send to the learned Court below,
forthwith. A copy be also sent to the Superintendent of Police,
Junagadh and the District Magistrate, Junagadh.
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34. In view of the above, this Criminal Appeal is partly allowed.
The Record and Proceedings be sent back to the concerned
Court forthwith.
(M. K. THAKKER,J)
ASHISH M. GADHIYAPage 84 of 84
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