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CR.A/71219/1987 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 712 of 1987
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
======================================
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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
======================================
STATE
OF GUJARAT
Versus
JAYABEN
MOHMADOOBKHAN MAMU PATAN'S CHAWL CHAMANPURA ANOTHER
======================================
Appearance
:
Mr Maulik Nanavati, Additional Public Prosecutor for
the Appellant
MR JM PANCHAL for the Opponents
======================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 26/08/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)
The
present appeal has been filed by the State of Gujarat against the
judgment and order dated 17.06.1987 passed by the City Sessions
Judge, Ahmedabad in Sessions Case No. 275 of 1986.
Present
respondents Jayedaben Maheboobkhan and Mehboobkhan Sikandarkhan
were put on trial for having caused death of one Jamilaben, wife of
younger brother of Mehboobkhan, on 7.11.1983 by pouring kerosene on
her and setting her on fire. The other witnesses, including the
father and brother of deceased Jamilaben, not having supported the
prosecution, the only evidence on which the prosecution relied for
proving the guilt of accused before the trial court is the so-called
dying declaration said to have been made by deceased Jamilaben before
Dr. Hasumatiben Patel (PW-3). The Trial Judge, however, did not find
the said dying declaration truthful and genuine and, therefore, in
absence of any other evidence connecting the accused with the crime,
acquitted them of all charges.
We
have heard Mr. Maulik Nanavati, Additional Public Prosecutor, for the
State. We have perused the judgment impugned before us and have gone
through the entire evidence on record.
At
the outset, it has been fairly submitted by Mr. Nanavati, learned
Counsel for the State that there is no other cogent evidence except
the oral dying declaration made by deceased Jamilaben before Dr.
Patel at the hospital for establishing the guilt of accused persons.
He has, however, submitted that the said declaration is genuine and
trustworthy, and is amply corroborated by the documentary and other
evidence adduced by the prosecution, and therefore can be relied upon
to found the conviction of accused persons. He has further submitted
that there is no reason for the doctor to falsely implicate the
accused or say something which was otherwise not informed to her by
the deceased. In support of his submission that dying declaration,
if found reliable, can be made the sole basis for conviction he has
cited several judgments of the Supreme Court and this High Court.
There cannot be any dispute with the position of law but the moot
question is whether the dying declaration in the present case is
reliable and inspires confidence.
Jamila
was brought to the hospital at 11:25am and died within 10 minutes at
about 11:35am. Dr. Patel (PW-3), on the day of incident, was
Assistant Police Surgeon at the Civil Hospital, Ahmedabad and she was
the first one to examine Jamila when she was brought to the Casualty
Department by her father-in-law and husband. Dr. Patel noticed that
Jamila had severe third degree burns all over her body. She was
writhing with excruciating pain and gasping for breath. Therefore,
she instantaneously referred her to the emergency where she was
examined by another doctor who made the following note on her case
paper:
Pulse
not palpable.
B.P.
not recordable
Pupils
bilaterally dilated and fixed, not reacting to light.
Respiration
fast and shallow.
Patient
is gasping.
Heart
rate 140 per minute.
About
10 minutes later Jamila died. Her case papers show a note that her
heart sound is absent and respiration is absent. In the background
of this evidence which records the condition of deceased at the time
when she was brought to the hospital and the fact that within ten
minutes thereafter she died, we are in agreement with the conclusion
arrived at by the Trial Judge that even if a statement had been made
by the deceased, it would be unsafe to rely on the same to convict
the accused, especially in absence of any other corroborating
evidence. We may note here that Dr. Patel in her cross examination
has admitted that the mental condition of the patient was very badly
affected at the time when she was brought to the hospital and that
the patient was not coherent in her speech. Also, as per the
prosecution the incident is stated to have occurred at around 9:30am
and Mohmedkhan (PW-1), father of deceased, and Ayub (PW-2), brother
of deceased, who brought the deceased to the hospital have stated in
their evidence that Jamila had become unconscious after the incident
and had not regained consciousness thereafter till the time of her
death. Under these circumstances, as rightly observed by the Trial
Judge, the possibility of doctor having confounded the statement made
by someone else as to what had happened as the statement made by
deceased cannot be ruled out completely. Lastly, in the E.P.R.
Register maintained at the hospital, Dr. Patel has mentioned the name
of only accused Jayedaben and not accused Mehboobkhan. As a
cumulative effect of all these circumstances, we are of the opinion
that the dying declaration upon which the prosecution is relying is
not convincing and free from such doubt as to make it the sole basis
for convicting the accused in absence of any other independent and
reliable corroborating evidence. We, therefore, see no reason to
interfere with the judgment of the Trial Court.
The
appeal deserves to be rejected and is accordingly dismissed.
Bail
bonds, if any, stand cancelled.
(Bhagwati
Prasad, J.)
(S.R.Brahmbhatt,
J.)
*mohd
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