Whether This Case Involves A … vs Salim Musabhai Ghanchu & ors

Gujarat High Court

Whether This Case Involves A … vs Salim Musabhai Ghanchu & ors

on 7 December, 2017

                R/CR.A/378/1994                                          CAV JUDGMENT




                  IN THE HIGH COURT OF GUJARAT AT
                            AHMEDABAD

                      CRIMINAL APPEAL No. 378 of 1994

         FOR APPROVAL AND SIGNATURE :
         HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
         and
         HONOURABLE MR.JUSTICE B.N. KARIA
         ==============================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

============================================================== STATE OF GUJARAT….Appellant(s) Versus SALIM MUSABHAI GHANCHU &

2….Opponent(s)/Respondent(s) ============================================================== Appearance :

MS JIRGA JHAVERI, APP for the Appellant(s) No. 1 HCLS COMMITTEE, ADVOCATE for the Opponent(s)/Respondent(s) Mr PRATIK B BAROT, ADVOCATE for the Opponent(s)/Respondent(s) ============================================================== CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI and HONOURABLE MR.JUSTICE B.N. KARIA 7th December 2017 HC-NIC Page 1 of 34 Created On Fri Dec 08 02:27:19 IST 2017 

CAV JUDGMENT (PER : HONOURABLE Mr. JUSTICE B.N. KARIA)

This Appeal, preferred by the State of Gujarat under Section 378 of the Code of Criminal Procedure, 1973 [“Code” for short] assails the judgment and order dated 5th January 1994 passed by the learned Sessions Judge, Amreli in Sessions Case No. 4 of 1993, whereby the respondents-original accused have been acquitted on benefit of doubt, as per provisions of sub- section [1] of Section 235 of the Code for the offence punishable under Section 498A, 498A read with Sections 34 & 114, Section 302 IPC, Section 302 read with Sections 34 & 114 of the Indian Penal Code [“IPC” for short].

The facts –

The prosecution case as it unfolded before the trial Court is that on 31st August 1992, at about 22:00 hours, all the accused [respondents herein]; which includes a child accused named Rashida [daughter of Musa Jamal] had given physical and mental torture to HC-NIC Page 2 of 34 Created On Fri Dec 08 02:27:19 IST 2017 the deceased Roshan, who happens to be the wife of the accused no. 1-Salim Musabhai Ganchi and daughter-in-law of accused no. 2 Jenuben and sister- in-law of the accused no. 3-Samina @ Salma [daughter of Musa Jamal] and thereby committed an offence punishable under Section 498-A IPC. It was further the case of prosecution that with a common intention to kill the complainant-Roshan, the accused no. 2 and juvenile Guddy poured kerosene on the deceased and accused nos. 1 & 3 put her ablaze and thereby caused fatal injuries to Roshan and murdered her and thereby committed an offence punishable under Sections 302 IPC and since all the accused have aided and abetted each other and thereby committed an offence punishable under Section 302 read with Sections 34 & 114 IPC, all the accused persons were charge-sheeted to stand trial for the same.

Relevant circumstances All the accused persons ie., the respondents herein denied charges levelled against them and HC-NIC Page 3 of 34 Created On Fri Dec 08 02:27:19 IST 2017 claimed to be tried. Therefore, the prosecution, in order to bring home the charge levelled against each of the accused person, submitted a muddamal list at Exh 7; list of documents at Exh. 8, which includes complaint, dying declaration and panchanama of the scene of offence and photographs at Exh. 30. The prosecution has also adduced oral evidence by examining eleven witnesses and thereafter, closed its evidence by filing a purshis Exh. 49.

Upon completion of the evidence, the accused- respondents herein were examined under Section 313 of the Code with regard to the circumstances incriminating against them, emerging from the prosecution evidence. The accused persons denied their involvement stating that they have been falsely implicated and they do not know anything about the incident.

And, upon hearing the submissions made before the trial Court and after appreciation of evidence – both ocular as well as documentary, the trial Court  found that the prosecution has been able to establish the homicidal death of deceased-Roshan having sustained 95% burn injuries at about 22:00 on 31st August 1992, however, failed to prove that kerosene was poured on the body of deceased-Roshan, as there was no reliable and corroborative piece of evidence – either circumstantial evidence, or evidence of an eye witness, as they have turned hostile, and therefore, the prosecution story of pouring kerosene was not believed. Further, it was found and observed by the trial Court that there was no case so far as Section 498A IPC made out, and hence, the presumption under Section 113A of the Indian Evidence Act was ruled out against the accused. The Court below further observed that though there are three dying declarations implicating the accused, the deceased failed to disclose her mind before the Doctor who initially examined her for medical treatment, and therefore, even if one of the dying declarations are taken by the Executive Magistrate, the same loses its significance, as it is inconsistent with the first version. It was also found by the learned trial Judge that the prosecution has not proved the guilt beyond reasonable doubt, as there was no smell of kerosene on the deceased and there is no corroboration of evidence to the dying declaration taken by the Magistrate. It was found and observed by the learned trial Judge that the patient may or may not be in the state of mental orientation to give statement and looking to the medical evidence and as far as oral dying declarations made before PW- 4 at Exh. 35; PW-2 : Doctor at Exh. 76; PSO [in the form of complaint] at Exh. 42 and PW-1 Executive Magistrate [Exh. 25] respectively are concerned, they are inconsistent with other evidence on record, and therefore, they cannot be acted upon without any corroboration, and non examination of material independent witness would render the prosecution version atleast not free from reasonable doubt, and therefore, upon appreciation of evidence, the learned trial Judge observed that the evidence adduced on  record cannot be said to have conclusively established the guilt against any of the accused persons beyond reasonable doubt, and therefore, the Court below held that they are entitled to be benefit of doubt, as the prosecution has failed to bring home the charge against the accused persons beyond any reasonable doubt.

Submissions Assailing the impugned judgment and order of acquittal, Ms. Jirga Jhaveri, learned Addl. Public Prosecutor has urged that the learned trial Judge has erred in not believing the dying declaration in the form of an FIR, wherein, names of all the accused persons were revealed. She further urged that even the learned trial Judge has failed to believe the dying declaration recorded by the Executive Magistrate, which was recorded within a short period of two hours after the deceased was admitted in a hospital. Learned APP has urged that the Court below has erred in properly appreciating the entire evidences – ocular as well as documentary, which has resulted into gross miscarriage of justice, and therefore, the entire judgment and order of acquittal being erroneous, improper and illegal, the same requires to be quashed and set-aside.

Ms. Jirga Jhaveri, learned APP appearing on behalf of the appellant-State has taken this Court through the relevant evidence on the record; more particularly, oral depositions of PW-4 : Haji Jasub [Exh. 35]; PW-2 Doctor Masrani in the form of a history [Exh. 27]; PW-9 : PSO Shri Mahendrasinh Chauhan [recorded in the form of a complaint at Exh. 42]; PW-1 Magistrate [recorded in the form of Dying Declaration] at Exh. 25 and lastly before PW-3 : Ishak Suleman-father of the deceased before whom deceased Roshan made statement as to the occurrence of incident, and other dying declarations made before the Executive Magistrate to contend that by adducing necessary evidence, the prosecution had proved that the incident took place on 31st August 1992 at 22:00 hours; that the common object of the accused was to commit murder of victim-Roshan; that in further of the common object, the child accused-Guddy poured kerosene on the deceased and whereas, the accused nos. 1 & 3 put her on fire and thereby the victim- Roshan sustained fatal burn injuries. That, the injured- Roshan was conscious and well oriented. That, considering the details of all these dying declarations, there being no history of unconsciousness, the trial Judge ought to have convicted the accused, as the declarations made by the deceased-Roshanben are trustworthy and no corroboration is required. Lastly, learned APP Ms. Jirga Jhaveri appearing for the appellant-State urged that the impugned judgment and order may be reversed by convicting the accused persons for the offence for which, they are charged with and they be suitably punished.

Per contra, learned advocate Shri Pratik Barot appearing on behalf of the respondents-accused, at the outset, contended that there are in all five dying  declarations allegedly made by the deceased-Roshan – the first version, being one before PW-4 at Exh 35; the second version before PW-2 : Doctor [at Exh. 27]; the third being before PSO in the form of complaint at Exh. 42; the fourth version before the Magistrate in the official form of “Dying Declaration” at Exh. 25 and last version, before her father, who was examined as PW-3 at Exh. 29. Learned advocate Mr. Barot appearing for the respondents contended that out of all these five versions, three of them ie., [a] version given before a person who was instrumental in taking Roshanben to Civil Hospital at Amreli on 31st August 1992; [b] a version before the Doctor in form of history, and lastly, a version before her father are all very candidly consistent on the point of deceased-Roshan having sustained accidental burns upon her body, and therefore, the same has acted as a major ground for the trial Court to acquit the respondents-accused. Pointing out infirmities in the dying declarations, one by one, learned advocate Shri Barot took this Court to the Dying Declaration recorded at Exh. 25, wherein PW-1, in his deposition at Exh. 23 has stated that when he was on duty as Mamlatdar, Amreli he received a Yadi from Civil Hospital [Exh. 24] and pursuant thereof, when he reached at the Burns Ward for recording the declaration of victim, he noticed presence of five to six persons in the Ward. This witness has specifically stated about absence of Doctor, when he arrived in the Burns Ward and also depicted about presence of relatives, who were told to leave the place. Thus, according to the learned advocate for the respondents, presence of relatives of the deceased before actual recording of Dying Declaration casts shadow upon the version to be tutored by her near onces to see to it that the deponent changes her initial version and implicates maximum number of accused persons. The version recorded in the form of dying declaration, therefore, has rightly been disbelieved by the trial Court.

Pointing out infirmities in the second dying  declaration recorded by PW-1 at Exh. 23, counsel for the respondents urged that once recorded, the dying declaration [Exh. 25] ought to have been read over to the deponent on its completion, in consonance with the provisions of Section 32 [1] of the Indian Evidence Act, however, the same does not appear to have been done in the instant case, rendering such declaration inadmissible in evidence. Learned advocate for the respondents contended that PW-1 at Exh. 23 also deposes of his having visited chamber of Doctor concerned to get his endorsement as to the physical condition of the injured. This according to the learned counsel is not in consonance with the manner in which Dying Declaration is recorded, rather it appears that there was no doctor available to certify the mental and physical fitness of the injured-deponent and therefore, at a belated stage, a formality of taking an endorsement of a Doctor was completed by paying visit to his chamber. Counsel for the respondents urged that if the Doctor’s evidence is read in HC-NIC Page 12 of 34 Created On Fri Dec 08 02:27:19 IST 2017 juxtaposition to the version of PW-1, his evidence presents a different story to offer. This Doctor had come up with a case that after recording Dying Declaration, he himself had visited Emergency Ward ie., the place at which endorsement was made by him. Not only that, but if we look at the evidence of PW-1, he has not referred to presence of the Doctor at the time of recordance of Dying Declaration [Exh. 25] and rather clearly admits that during the course of recording the Dying Declaration, the Doctor was not present. Learned advocate Shri Barot pointed out that PW-1 at Exh. 23 admits of certain corrections made by encircling a portion of document [Exh. 25] stating that the same was done at the behest of the Doctor, whereas for what reason the same was corrected and at what time the corrections were made, does not come out on record, and therefore, the very factum of corrections being made in such a crucial document clouds a ray of suspicion and thereby inspires no confidence over the testimony of this witness. Learned  advocate Shri Barot appearing for the respondents further pointed out that PW-1 at Exh. 23 also refers to hazy thumb impression being noticed on Exh. 25 so also deposing about the deceased having complaining of pain to this witness at the time of recording of Dying Declaration, and yet, this witness did not think it fit to call Doctor, so therefore, if during the course of recordance of the declaration, the deceased was all throughout and in-between complaining of severe pain, the question which would arise is whether the deceased was in fact in a position to give her Dying Declaration, and if yet, what was her mental orientation at the time of recording the declaration to come to a conclusion that she was mentally fit to get her version.

Pointing out infirmities in Dying Declaration recorded by PW-9 at Exh. 42, learned advocate for the respondents submitted that this witness-PSO in his examination-in-chief does not refer to presence of a Doctor at the time at which he started recording the  complaint/dying declaration of the injured, when he visited the Burns Ward at Civil Hospital, Amreli which is once again a bypass to the requirement of Section 32 [1] of the Evidence Act ie., in not ascertaining the mental and physical fitness of the declarant at the time of recording of the complaint rather no Doctor was consulted by this witness, who would certify the condition of the injured at the time of recording of the statement. This witness further deposes that when he went inside the Burns Ward, he did not ask the Doctor concerned as to the mental and physical condition of injured, nor did this witness insist for presence of Doctor at the time of recording of the complaint, which otherwise also makes his version vulnerable. Not only that, PW-9 also admits that though he had earlier in point of time at Exh. 10 received a Vardhi bringing to his notice that deceased having sustained accidental burns, not a single question was asked by this witness to the injured in relation to the accidental burns, and therefore, such an action on his part is not acceptable HC-NIC Page 15 of 34 Created On Fri Dec 08 02:27:19 IST 2017 in the eyes of law so also his conduct speaks volume about in what direction, this witness wanted to drive at. That, the husband of the deceased – Salim was named in the last portion of the complaint so also the thumb impression of the injured/ deceased was never made to identify vis-a-vis in Exh. 42-complaint, and again there was a correction made to the extent that in the place of right hand thumb, the same was replaced by left hand thumb impression. According to the learned advocate for the respondents-accused such corrections and/or interpolation in a crucial document like complaint is not permissible in law, as it creates doubt about the very recording of the complaint and its complexions thereof. This witness at Exh. 41 further deposes of presence of cluster of persons nearby the injured, when he reached at the Hospital, which would go to show that in fact, the injured/deceased was tutored by the relatives to see to it that the accused persons are anyhow arraigned in a serious offence. Learned advocate Shri Barot for the HC-NIC Page 16 of 34 Created On Fri Dec 08 02:27:19 IST 2017 respondents drew attention of this Court to page 119 to point out another infirmity in the version of PW-9 at Exh. 41 which refers to injured/deceased having spoken for 20 to 25 minutes. According to him, can injured person having sustained 100% burn injuries covering her entire body, and who was under the influence of analgin, could have spoken for such a long tenure. Counsel for the respondents drew our attention to page 120 to point out that in order to come to a definite conclusion that the injured was in a conscious state of mind, there was no sort of preliminary questions put to her before actual recording took place, when this witness deposes of injured having sustained burn injuries on her entire mouth.

Learned advocate Shri Barot appearing on behalf of the respondents next contended that if the prosecution story is tested on its face value ie., all the accused persons having poured kerosene over the injured/deceased and they having set her ablace, HC-NIC Page 17 of 34 Created On Fri Dec 08 02:27:19 IST 2017 unfortunately, if the panchnama of the body of the accused persons is referred [Exhs. 17 & 18], neither there are any visible marks of kerosene found upon their clothes nor there is any reference to small of kerosene in the entire Panchnama, which otherwise also, makes the very case of prosecution without any foundation.

Learned counsel for the respondents further contended that as per the version of PW-3, who happens to be the father of the deceased and PW-4 who is one, who had taken the deceased to the Hospital, have in their examination-in-chief stated that categorically remained unshaken or rather strict to their version of deceased having sustained accidental burns upon her, and therefore, as per catena of decision on the issue as to how a hostile witness/evidence is to be appreciated, once such witnesses have remained consistent in their examination-in-chief may be their turning hostile would not harm the prosecution, but at the same time, HC-NIC Page 18 of 34 Created On Fri Dec 08 02:27:19 IST 2017 whatever being deposed by the witnesses in the chief- examination supporting either the prosecution or the defence can be taken into consideration and conclusion thereof be based upon the same. On all these broad submissions made at the bar, learned advocate Shri Pratik Barot appearing for the respondents contended that there are serious doubts about the manner in which the incident occurred as well as the assailants and their participation in the alleged offence on the basis of various versions culled out in so-called four dying declarations on the record. Further, Shri Barot, learned advocate for the respondents contended that the trial Court has made thread bare analysis of the evidence led before it and has rightly come to a reasonable and plausible finding of not holding the respondents-accused guilty of the charges leveled against them.

Placing reliance upon the decisions of the Apex Court in the cases of [a] Shaikh Bakshu & Ors. vs. State of Maharashtra, [2007] 11 SCC 269; [b] HC-NIC Page 19 of 34 Created On Fri Dec 08 02:27:19 IST 2017 Surinder Kumar v. State of Haryana, 2012 [1] GLH 658; [c] Ramakant Mishra alisa Lalu v. State of Uttar Pradesh, [2015] 8 SCC 299; [d] Selvaraj alias Chinnapaiyan v. State, Represented by Inspector of Police, [2015] 2 SCC 662; [e] Kanti Lal v. State of Rajasthan, 2009 (2) GLH 688; [f] Paulmeli & Anr. v. State of Tamil Nadu, [2014] 13 SCC 90 and of this Court in the case of State of Gujarat v. Rajesh Nathia Chhara & Ors., reported in 2015 [3] GLR 2480, learned advocate Shri Pratik Barot appearing for the respondents lastly contended that the reasonings assigned by the learned trial Judge cannot be said to be either unreasonable, perverse or illegal in any manner, and therefore, benefit of doubt given to the respondents-accused does not call for interference in the acquittal appeal preferred by the State. Analysis/reasonings In order to appreciate the rival contentions advanced on behalf of the respective parties, we have independently scrutinized the evidence led by the HC-NIC Page 20 of 34 Created On Fri Dec 08 02:27:19 IST 2017 prosecution and examined the judgment of the trial Court. However, before dealing with the same, it would be apt to refer to the legal position relating to the acceptability of dying declaration.

In Sham Shanker Kankaria v. State of Maharashtra, reported in [2006] 13 SCC 165, the Apex Court held that, “though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power to cross examination. Such a power is essential for eliciting the truth as an obligation of truth could be. This is the reason, the Court also insists that the dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not a result of either tutoring or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is HC-NIC Page 21 of 34 Created On Fri Dec 08 02:27:19 IST 2017 satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated.”

The Apex Court in the case of Surinder Kumar v. State of Haryana [Supra] has observed and held that, “…though there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration but the Court must be satisfied that the dying declaration is true and voluntary and in that event, there is no impediment in basing conviction on it, without corroboration. It is the duty of the Court to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence.”

In the case of Shaikh Bakshu & Ors. v. State of HC-NIC Page 22 of 34 Created On Fri Dec 08 02:27:19 IST 2017 Maharashtra [Supra], rejecting the view of the High Court concluding that even though it is not stated in the dying declaration, it has to be presumed that it has been read over and explained, the Apex Court held that the dying declaration recorded in that case was not reliable because there was no mention that the same was read over and explained to the deceased.

In the case of Ramakant Mishra alias Lalu & Ors. vs. State of Uttar Pradesh [Supra], dismissing the appeal preferred by the convict, the Apex Court observed and held that, “..once statement is found to be genuine, voluntary, consistent, credible and untutored, it assumes great probative value and can form sole basis of conviction without requiring any corroboration.” The Court further observed that, “..there may also be other statements of deceased, written or verbal, such as in the form of suicidal note, letters, communications, sign or signal, etc., but dying declaration being made in “contemplation of death” HC-NIC Page 23 of 34 Created On  enjoys higher level of credence vis-a`-vis any other statement.”

In para 21 of its decision rendered in the case of Kanti Lal v. State of Rajasthan, reported in 2009 [2] GLH 688, the Apex Court has observed and held that, “..It is well settled that one of the important tests of the credibility of the dying declaration is that the person, who recorded it, must be satisfied that the deceased was in a fit state of mind. For placing implicit reliance on dying declaration, the Court must be satisfied that the deceased was in a fit state of mind to narrate the correct facts of occurrence. If the capacity of the maker of the statement to narrate the facts is found to be impaired, such dying declaration should be rejected, as it is highly unsafe to place reliance on it. The dying declaration should be voluntary and should not be prompted and physical as well as mental fitness of the maker is to be proved by the prosecution.”

Dismissing the Appeal preferred by Paulmeli and another, the Apex Court in the matter between HC-NIC Page 24 of 34 Created On Fri Dec 08 02:27:19 IST 2017 Paulmeli & Anr. vs. State of Tamil Nadu [Supra] has held that, “..by calling into aid its vast experience of men and matters in different cases, the Court must evaluate entire material on the record by excluding exaggerated version given by any witness for reason that witnesses nowadays go on adding embellishments to their version, perhaps for fear of their testimony being rejected by the Court. …However, the Courts should not disbelieve evidence of such witnesses altogether, if they are otherwise trustworthy.”

In the matter between Selvaraj alias Chhinnapaiyan vs. State, reported in [2015] 2 SCC 662, the Apex Court in para-19 observed and held that, “..It is settled principle of law that benefit of reasonable doubt is required to be given to the accused only if the reasonable doubt emerges out from the evidence on record. Merely for the reason that the witnesses have turned hostile in their cross examination, the testimony in examination-in-chief cannot be outright discarded provided the same HC-NIC Page 25 of 34 Created On Fri Dec 08 02:27:19 IST 2017 [statement in examination-in-chief supporting prosecution] is corroborated from the other evidence on record. In other words,if the court finds from the two different statements made by the same accused, only one of the two is believable, and what has been stated in the cross examination is false, even if the witnesses have turned hostile, the conviction can be recorded believing the testimony given by such witnesses in the examination-in-chief. However, such evidence is required to be examined with great caution.”

In the case of State of Gujarat v. Rajesh Nathia Chhara & Ors., reported in 2015 [3] GLR 2480, the Division Bench of this Court, while confirming the acquittal has observed and held that, “…..It is well-settled principle of law that if two views are possible, the appellate Court should not disturb the finding of acquittal recorded by the trial Court unless there are compelling reasons to do so.” ….Infirmities in the prosecution case go to the root of the matter and strike a vital blow on the prosecution case. In such a HC-NIC Page 26 of 34 Created On Fri Dec 08 02:27:19 IST 2017 case, it would not be safe to set aside the order of acquittal, more particularly, when the evidence has not inspired confidence of the learned trial Judge.”

Evidence Diverting our focus on the evidence led by the prosecution before the trial Court, in the instant case, there are in all five dying declarations. One of these declarations has been taken down by PW-1: Hemantgar Dhangar Gosai, Deputy Mamlatdar [Revenue], who in his testimony at Exh. 23, has deposed that when he went alongwith Doctor in the Burns Ward to draw a Dying Declaration, he was informed that the patient was in conscious state of mind. This witness further deposes of presence of five to six persons in the Burns Ward, and of not reading out version recorded by him to the injured. Not only that, this witness has even failed to take endorsement of the Doctor as to the state of mind/consciousness of the patient. In the cross examination, this witness has admitted that he has not mentioned about the fact HC-NIC Page 27 of 34 Created On Fri Dec 08 02:27:19 IST 2017 that the patient was conscious and that the Doctor has allowed him to take dying declaration and also further admitted that during the recordance of dying declaration, Doctor was not present there. Though, this witness has denied that a line covering the names of Savina and Guddy have been added afterward, but on perusing the dying declaration, it clearly culls out that this line appears to have been added subsequently in small letters between the space of the answers to the questions. Moreover, as certified by the Doctor, the patient was having 100% burns and in such a condition, it cannot be possible for her to give a detailed story, instead of answering preliminary question as to what had happened to her. Other glaring infirmities found by the trial Court includes encircling made in the dying declaration, use of eraser and no identification is made by a person before whom thumb impression/mark was made on the dying declaration, declaring it to be Right Hand Thumb [RHT] mark of “Roshanben Salim”. Therefore, the trial Court HC-NIC Page 28 of 34 Created On Fri Dec 08 02:27:19 IST 2017 has rightly observed that when the Doctor has certified that the right hand of the patient was burnt, and therefore, her left hand thumb impression was drawn on the complaint, then how her right hand thumb mark came on the Dying Declaration. There are inconsistencies in respect of naming the accused persons, which have rightly been weighed to give benefit of doubt to the accused.

Further, if we look at the testimony of PW-2 Dr. Suryakant Maganlal Masharani, he deposes of treating the patient on 31st August 1992, when she was brought before him at 11:00 pm. This witness though supports the version of prosecution of injured being conscious, while her dying declaration was being recorded by the Deputy Mamlatdar, however, fails to render explanation to the correction made in dying declaration [Exh. 25]. This witness admits that there was no smell of kerosene on the body of the patient, which falsifies the story of prosecution of pouring kerosene on the body of the deceased.

Created On Fri Dec 08 02:27:19 IST 2017 Though the prosecution has examined PW-3 : Ishak Suleman at Exh. 29; PW-4 : Haji Jusab at Exh. 35; PW-5 : Habib Jusab at Exh. 37; PW-6 : Iqbal Bachu at Exh. 38; PW-7 : Basir Osman at Exh. 39 and Ibrahim Hasan at Exh. 40, however, none of them have supported the prosecution, and therefore, the trial Court has rightly held that there is no circumstantial evidence available to connect the accused with the crime alleged. Even, Ishak Suleman [PW-3] who happens to be the father of the deceased has not extended support to the prosecution story, and therefore, these witnesses have turned hostile and to which no satisfactory explanation appears to have been rendered by the prosecution.

If we now analyze testimony of PW-9-

Mahendrasinh Chauhan [Exh. 41], he deposes of having recorded complaint at the Burns Ward of Civil Hospital, when he met the injured at about 11:45 pm on 31st August 1992, and of his taking left hand thumb HC-NIC Page 30 of 34 Created On Fri Dec 08 02:27:19 IST 2017 impression/mark of the complainant, since her right hand was completely burnt. Now, when this witness has taken left hand thumb mark of injured Roshan on the complaint, then certainly the suspicion drawn by the trial Court as to how her right hand thumb mark could have been taken on a long drawn dying declaration appears to be correct. Moreover, possibility of injured-deceased with 100% burns having given long complaint also reels under suspicion.

The version of Doctor [PW-2 at Exh. 27], who took the second dying declaration falsifies the version recorded in a Dying Declaration, which was recorded by Deputy Mamlatdar, since the note at Exh. 10 clearly speaks of the Medical Officer, Amreli informing the Police Station about admission of Roshan Salimbhai in the hospital with burn injuries. Therefore, presumption drawn by the trial Court that after getting admission in the Hospital, the injured might have given history to the Doctor that she was burnt HC-NIC Page 31 of 34 Created On Fri Dec 08 02:27:19 IST 2017 accidentally cannot be found fault with. Moreover, the version also does corroborates with the fact that there was no smell of kerosene found on the clothes of the deceased. The findings arrived at by the trial Court with regard to the patient being under the influence of Analgin and in such a condition, she might not have been able to properly describe the incident cannot be ruled out.

Now, if we look Exh. 36, it reveals that the injured has narrated story before Aslam in which she has stated of her having sustained burn injuries by herself, and whereas, in the complaint [Exh. 42] an attempt has been made to involve Salim and other accused persons. Thus, there are glaring discrepancies in the multiple dying declarations which does not corroborate with the attending circumstances; including the physical and mental condition of the injured-deceased at the relevant time and medical evidence.

It is worth noting that this is an acquittal appeal in which Appellate Court would be rather slow to interfere with the order of acquittal when the infirmities in the prosecution case go to the root of the matter and strike a vital blow on the case and in such a case, it would not be safe to set-aside the order of acquittal, more particularly when the evidence has not inspired confidence of the trial Court. It is also well settled that even if two views are possible, the Appellate Court shall not ordinarily interfere with the judgment of acquittal in a routine manner, unless the order of the trial Court is per se wrong on facts and on law or perverse.

Conclusion On overall re-appreciation of the evidence available on the record, this Court is satisfied that there is no infirmity in the reasonings given by the learned trial Judge for acquitting the respondents- accused.

Resultantly, for the foregoing reasons, this Criminal Appeal preferred by the State of Gujaratdeserves to be dismissed and is accordingly dismissed. Since all the respondents-accused are on bail, their bail bonds shall stand cancelled.

R&P be transmitted back to the court concerned.

[SMT. ABHILASHA KUMARI, J.] [B.N. KARIA, J.] Prakash HC-NIC Page 34 of 34 Created On Fri Dec 08 02:27:19 IST 2017

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