Gujarat High Court
State Of Gujarat vs Manguben Jagjivandas Dhobi on 7 February, 2023
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.A/192/1997 JUDGMENT DATED: 07/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 192 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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 ?
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STATE OF GUJARAT
Versus
MANGUBEN JAGJIVANDAS DHOBI & 2 other(s)
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Appearance:
MR CHINTAN DAVE, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s)
No. 2,3
MR NILESH I JANI(3558) for the Opponent(s)/Respondent(s)
No. 2,3
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 07/02/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
1. The present appeal has been filed by the appellant - State under Section 378 of the Code of Page 1 of 24 Downloaded on : Tue Feb 14 20:31:10 IST 2023 R/CR.A/192/1997 JUDGMENT DATED: 07/02/2023 Criminal Procedure, 1973 (hereinafter referred to as 'the Code') against the judgment and order dated 27.12.1996 rendered by learned Additional Sessions Judge, Mehsana in Sessions Case No.157 of 1996, whereby, the learned Additional Sessions Judge has acquitted the respondents accused from the charges levelled against them for the offence punishable under Sections 302, 498A, 114 and 34 of the Indian Penal Code.
2. The brief allegations of the prosecution against the respondents - accused, as per charge, are as under:
2.1. That the deceased Gitaben had married to Pankajkumar, the son of the accused No.1 three years prior to the incident and thus, the accused No.1 was mother-in-law of the deceased, the accused No.2 was brother-in-law of the deceased and the accused No.3 was sister-in-law of the deceased. Prior to the incident, the accused persons used to taunt and torture deceased Gitaben mentally and physically regarding household chores and thereby, the accused persons have committed an offence punishable under section 498(A) of Indian Penal Code.
At about nine o'clock in the morning on 07/03/1996, at the residence of the accused persons situated at Jotana, the accused persons colluded with each other with an intent to kill deceased Gitaben and in furtherance of their common intention and objective, the accused No.3, when Gitaben was mopping Page 2 of 24 Downloaded on : Tue Feb 14 20:31:10 IST 2023 R/CR.A/192/1997 JUDGMENT DATED: 07/02/2023 the floor, told her, "You do not do the household chores." and mentally tortured her and spoke abusive words to her and poured a kerosene over her from a tin can and the accused No.2 covered the deceased Gitaben's mouth when the accused No.1 was present there and the accused No.3 lit a match stick and set deceased Gitaben on fire. As a result of such act of the accused persons, when deceased Gitaben was screaming with burns, her minor son Mital, present nearby, came running and embraced her, due to which, he also sustained burn injuries and died from the serious injuries during treatment on 07/03/1996 and deceased Gitaben died from burn injuries during treatment on 08/03/1996. In this way, the accused persons, having a common intention, deliberately committed death of deceased Gitaben and her son Mital and thereby, committed an offence punishable under section 302 read with section 34 of Indian Penal Code and the accused persons, at the same place, time and date, having a common intention, abetted each other in this act of burning deceased Gitaben alive by pouring kerosene over her and thereby, committed an offence under section 114 of I.P.C. also.
3. After the registration of the First Information Report, the investigating officer carried out the investigation and during the course of investigation, recorded the statements of the witnesses and also prepared various Panchnamas. After the investigation was over, the investigating officer filed the charge-
Page 3 of 24 Downloaded on : Tue Feb 14 20:31:10 IST 2023R/CR.A/192/1997 JUDGMENT DATED: 07/02/2023 sheet against the respondents accused before the concerned Magistrate Court. The concerned Magistrate, thereafter, committed the case under Section 209 of the Code to the learned Sessions Court, Mehsana as the case was exclusively triable by the Court of Sessions. Before the Sessions Court, the case was registered as Sessions Case No.157 of 1996.
4. During the course of the trial, the prosecution has examined 9 witnesses and also produced documentary evidence before the learned Trial Court. After conclusion of the trial, further statements of the respondents accused under Section 313 of the Code were recorded and thereafter the learned Trial Court passed the impugned judgment and order of acquittal as observed hereinabove. The State has, therefore, preferred present appeal.
5. Heard learned APP Mr. Chintan Dave for the appellant - State and learned advocate Mr. Nilesh Jani for the respondents - original accused.
6. At the outset, it is pertinent to note that respondent No.1 - Manguben Jagjivandas Dhobi died on 02.03.2008 and therefore present appeal stands abated qua respondent No.1.
7. Learned APP Mr. Dave has referred the depositions given by the prosecution witnesses and also referred the Dying Declaration given by the Page 4 of 24 Downloaded on : Tue Feb 14 20:31:10 IST 2023 R/CR.A/192/1997 JUDGMENT DATED: 07/02/2023 deceased. After referring to the relevant depositions and the documentary evidence, learned APP has mainly contended that PW-1 - Exh. 14 - Mahendrakumar Maganlal Barot, who was working as Executive Magistrate, has recorded the dying declaration of the deceased and supported the case of the prosecution. Learned APP has also referred the deposition given by PW-3 - Exh.22 - Kalyansinh Viraji, Police Officer who was on duty at Mehsana Civil Hospital and recorded the statement of the deceased. Thereafter, learned APP has placed reliance upon the deposition given by PW-5 - Exh.27 - Jayantibhai Kalidas Dhobi, father of the deceased before whom the deceased gave oral dying declaration. Similarly, learned APP has also referred the deposition given by PW-7 - Exh.36 - Jayantilal Jivrambhai Dhobi, cousin brother of deceased before whom also the deceased gave oral dying declaration. After referring to the aforesaid depositions given by witnesses, learned APP contended that in all the aforesaid dying declarations the deceased had specifically narrated the incident in detail and given the names of all the respondents - accused and the role played by them.
7.1. At this stage, learned APP has referred the dying declaration - Exh.16 given by the deceased before PW-1 - Executive Magistrate. After referring to the said dying declaration it is contended that when the deceased had specifically named the respondents - accused and the role played by them, Page 5 of 24 Downloaded on : Tue Feb 14 20:31:10 IST 2023 R/CR.A/192/1997 JUDGMENT DATED: 07/02/2023 the learned Trial Court ought to have believed the said dying declaration given before the Executive Magistrate, Police Officer and father of the deceased.
8. Learned APP contended that the Trial Court has committed grave error while discarding the aforesaid dying declarations given by the deceased on the ground of discrepancies in the said dying declarations. Thus, the order passed by the learned Trial Court is perverse and therefore this Court may quash and set aside the impugned judgment and order of acquittal passed by the learned Trial Court. Learned APP Mr. Dave has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of State of Uttar Pradesh v. Veerpal and Another, reported in (2022) 4 SCC 741 in support of his contentions.
9. On the other hand, learned advocate Mr. Jani has mainly contended that the deceased got 95% burn injuries and that too of second and third degree and her condition was not good when she was brought to the hospital by her husband and therefore she was not in position to give the dying declaration as projected by the prosecution. It is submitted that when there is discrepancy in the dying declaration given by the deceased before PW-1 - Executive Magistrate and PW-3 - Police Officer and when the names of the respondents accused were not given by Page 6 of 24 Downloaded on : Tue Feb 14 20:31:10 IST 2023 R/CR.A/192/1997 JUDGMENT DATED: 07/02/2023 her to the Doctor when she was brought to the hospital, the learned Trial Court has rightly not placed reliance upon the said dying declarations. At this stage, learned advocate Mr. Jani has also referred to the reasoning recorded by the learned Trial Court while passing the impugned judgment and order and thereafter submitted that the learned Trial Court has not committed any error while acquitting the respondents - accused and therefore the present appeal may not be entertained.
10. Learned advocate Mr. Jani has, at this stage, placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Chandrappa and others v. State of Karnataka, reported in (2007) 4 SCC 415, and more particularly, referred to and relied upon para 42 of the said decision and submitted that even if two views are possible on the basis of the evidence on record, the Appellate Court should not disturb the findings of acquittal recorded by the learned Trial Court. Learned advocate, therefore, urged that the appeal may be dismissed.
11. We have considered the submissions canvassed by learned advocates appearing for the parties. We have also perused the documentary as well as oral evidence led by the prosecution before the learned Trial Court. It would emerge from the record that deceased Gitaben and his minor son sustained burn injuries when they were in their house and both died due to Page 7 of 24 Downloaded on : Tue Feb 14 20:31:10 IST 2023 R/CR.A/192/1997 JUDGMENT DATED: 07/02/2023 such burn injuries. As per one story put forward by the prosecution through witness PW-8 - Exh. 37 - Pankajkumar Jagjivandas Dhobi, husband of the deceased, one Paresha, niece of the said witness, called the said witness when he was at his work place. When the said witness came to the residence, he saw his wife Gitaben lying in burn condition and therefore Gitaben was brought to the hospital, whereas, as per another story given by the deceased in the dying declaration Exh.16, when the concerned accused persons poured kerosene on her and thereafter set her on fire, she was screaming for help and at that time her husband rushed to the place. However, the fact remains that the husband of the deceased brought her to the hospital.
12. PW-2 - Exh.17 - Doctor Amratlal Ambalal Patel has stated in his deposition that he was working as Medical Officer in Civil Hospital, Mehsana on 07.03.1996. At that time, at about 9:50 a.m., one Pankajkumar Jagjivanram brought one lady patient. The said patient got 95% first and second degree burns and her condition was serious. The said Doctor informed on duty Head Constable of Civil Hospital for recording the statement of the said patient and also for recording of dying declaration of the patient. It is further stated that the said patient died at 18:35 hours. In his deposition, the said witness has narrated about the injuries sustained by the deceased. The said witness further deposed that Page 8 of 24 Downloaded on : Tue Feb 14 20:31:10 IST 2023 R/CR.A/192/1997 JUDGMENT DATED: 07/02/2023 Executive Magistrate came at 11:00 a.m. for recording the dying declaration of the patient and at that time he informed him that patient is conscious. It is further stated that after recording of the dying declaration the Executive Magistrate once again met him. At that time he was sitting in the ward and he endorsed that the patient is conscious. The said endorsement was made at 11:30 a.m. He was also present with the patient when the endorsement was made. However, during the cross-examination, the said witness has specifically stated that when the dying declaration was recorded, he was not present with the patient. He has also admitted that the condition of the patient was serious and a patient hardly survives if such a patient sustains 95% burn injuries.
13. Thus, from the deposition of the aforesaid witness, it is clear that condition of the patient was serious when she was brought to the hospital. At this stage, it is pertinent to note that the said witness produced medical papers at Exh.19. It is stated in the history that, 'alleged burn injuries by pouring kerosene'. However, it is pertinent to note that names of the respondents accused were not disclosed by the patient i.e. deceased or by her husband i.e. PW-8 - Pankajkumar Dhobi before the Doctor when the deceased was brought to the hospital.
14. PW-1 - Exh.14 - Mahendrakumar Maganlal Barot was working as Executive Magistrate. The said witness has Page 9 of 24 Downloaded on : Tue Feb 14 20:31:10 IST 2023 R/CR.A/192/1997 JUDGMENT DATED: 07/02/2023 recorded the dying declaration of the deceased. As per the deposition of the said witness he received Yadi for recording of the dying declaration from Mehsana city PSO and therefore he reached to Civil Hospital and contacted the Doctor and inquired about the patient. He also asked whether patient is conscious or not. Thereafter the concerned Doctor made an endorsement on the Yadi that patient is conscious and is in position to speak. When he entered in the ward, patient was shouting and asking for the water. Thereafter the said witness has recorded the dying declaration as stated by the patient. As per the said dying declaration the deceased/patient has stated that at about 8 a.m. she was in her house and was doing household work/cleaning the house. Her husband had gone to the shop, at that time, her sister-in-law Sonal poured kerosene from 15 liter can and her brother-in-law pressed the mouth of Gitaben so that she cannot shout for help and thereafter her sister-in-law set her on fire. At that time, her son aged about one and half year came there and he also sustained burn injuries. At that time, the respondent accused i.e. her mother- in-law was also standing at the said place and thereafter all the accused left the house. When she was screaming for help, her husband came to the house. The said dying declaration is produced vide Exh.16.
14.1.During the cross-examination, PW-1 - Executive Page 10 of 24 Downloaded on : Tue Feb 14 20:31:10 IST 2023 R/CR.A/192/1997 JUDGMENT DATED: 07/02/2023 Magistrate has stated that he had started recording the dying declaration at about 11:00 a.m. and it was over at 11:30 a.m. He has further admitted that at the time of recording of the dying declaration, no one was present near the patient and after completing the dying declaration he had gone to the office of the Doctor. The Doctor was sitting in his office and thereafter the Doctor made an endorsement that the patient was conscious. He has also stated that there is certain overwriting in the dying declaration.
15. PW-3 - Exh.22 - Kalyansinh Virji is the prosecution witness who was working as Police Constable at Civil Hospital, Mehsana. Before the said witness, the deceased Gitaben has given her first version. As per the case of the prosecution, at about 9:50 a.m., the said witness specifically stated that he was working on 07.03.1996 as on duty Constable at Civil Hospital, Mehsana. He received oral Vardi from Doctor A. A. Patel of Civil Hospital at 9:50 a.m. It was informed to him that one Dhobi Gitaben Pankajbhai got burn injuries and admitted in Civil Hospital for treatment. Thereafter he has recorded the statement of Gitaben and Gitaben put her thumb impression on the said statement. The said statement was produced vide Exh.24. The said witness also deposed that when he inquired from the Doctor, Doctor told that patient is conscious and is in position to give her statement. However, during the cross-examination, he stated that in the Yadi he had not stated about the Page 11 of 24 Downloaded on : Tue Feb 14 20:31:10 IST 2023 R/CR.A/192/1997 JUDGMENT DATED: 07/02/2023 timing when the Yadi was given nor he has stated about the time for recording of the statement of Gitaben. He has also admitted that condition of the patient was serious and Doctor was present when he recorded the statement of Gitaben. However, he did not obtain the endorsement of the Doctor.
16. PW-4 - Exh.25 - Kaileshvan Shardaprasad, who was working as the PSO and he has handed over the investigation to PSI Mekwan.
17. PW-5 - Exh.27 - Jayantibhai Kalidas Dhobi is the father of the deceased Gitaben. The said witness, in his deposition, has mainly narrated about the mental torture meted out to his daughter Gitaben by the respondents - accused. The said witness stated that when he reached to the Civil Hospital, his daughter Gitaben was lying on the stretcher on burn condition and when he inquired, she narrated about the incident. Thus, as per the deposition of the said witness, his daughter Gitaben gave oral dying declaration before him. However, during the cross- examination, said witness has stated that Gitaben was placed at third floor of Civil Hospital. The said witness has also admitted that though he came to know that the respondents - accused have committed the crime in question on 07.03.1996 when the oral dying declaration was given before him by his daughter, he did not lodge any complaint with regard to same before any authority or police station and only for Page 12 of 24 Downloaded on : Tue Feb 14 20:31:10 IST 2023 R/CR.A/192/1997 JUDGMENT DATED: 07/02/2023 the first time, he has narrated about the oral dying declaration on 09.03.1996 i.e. after a period of two days. If the said deposition is read with the deposition given by investigating officer - PW-9 - Exh.38 - Rameshbhai Mekwan, it is clear that PW-5 has given a new story before the Court for the first time and there are major contradictions in his statement.
18. Another witness upon which the prosecution has placed reliance is PW.7 - Exh.36 - Jayantilal Jivrambhai Dhobi who is the cousin brother of the deceased. It is pertinent to note that the said witness was working in Custom Department and as per the deposition of the said witness, deceased Gitaben was complaining about the mental torture given by the present respondents - accused to her and more particularly about her character. As per the deposition given by the said witness when he reached to Civil Hospital at about 1:00 p.m., Gitaben narrated about the incident in question and implicated present respondents accused. It is specifically stated by the said witness that sister- in-law of Gitaben poured kerosene and thereafter her brother-in-law set her on fire. During the cross- examination of the said witness, he has admitted that though he came to know about the incident in question on the basis of the oral dying declaration given by his cousin sister, he did not give any complaint to the police and only after a period of two days he has given the statement before the police.
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19. PW-8 - Pankajkumar Dhobi - Exh.37 is the husband of deceased Gitaben. The said witness has specifically stated during the course of his examination-in-chief that his niece informed him about the incident in question and therefore he reached to the residence and saw his wife in burn condition. Therefore, he along with one Gangaram Mochi brought Gitaben and his son Mitul to the hospital. From the deposition of the said witness it is revealed that when the incident had taken place the respondents - accused were not present. The said witness is not declared hostile by the prosecution. From the deposition of the said witness it is further revealed that when he reached to the place of incident his wife Gitaben did not give the names of the respondents - accused by alleging that respondents - accused set her on fire.
20. PW-9 - Ramesh Mekwan - Exh.38 is the investigating officer who has stated in his deposition that he has carried out the investigation during which he has recorded the statements of the witnesses and prepared various Panchnamas and sent the muddamal to Forensic Science Laboratory for necessary examination/analysis. During cross- examination the said witness has specifically admitted that from the place of incident, 15 liter steel box/plastic can of kerosene was not found. The said witness also admitted in cross-examination that Page 14 of 24 Downloaded on : Tue Feb 14 20:31:10 IST 2023 R/CR.A/192/1997 JUDGMENT DATED: 07/02/2023 when he had recorded the statement of witness Jayantibhai Dhobi, the said witness did not say about certain aspects in his police statement.
21. From the aforesaid evidence led by the prosecution, it is clear that the prosecution has mainly placed reliance upon the dying declaration given by the deceased at Exh.16 as well as the deposition given by PW-1 - Executive Magistrate who has recorded the dying declaration of the deceased. We have examined the deposition of the said witness, dying declaration as well as the deposition given by PW-5 - Exh.27 - Jayantibhai Kalidas Dhobi, father of the deceased and from the material and evidence produced before us, we are of the view that there is discrepancy in the dying declaration given by the deceased before PW-3 - Kalyansinh Virji as well as PW.1 - Executive Magistrate. As observed hereinabove, when deceased Gitaben was brought to the hospital, she did not give the names of the respondents accused before the Doctor who is an independent witness though she was conscious as per the case of the prosecution. It also reveals that the deceased got 95% burn injuries of first and second degree and as per the case of the prosecution witnesses her condition was serious when she brought to the hospital and therefore it is doubtful whether she was in position to give dying declaration as projected by the prosecution before the learned Trial Court. Further, from the deposition of the Executive Page 15 of 24 Downloaded on : Tue Feb 14 20:31:10 IST 2023 R/CR.A/192/1997 JUDGMENT DATED: 07/02/2023 Magistrate - PW-1, it is clear that after recording the dying declaration he had contacted the Doctor who was sitting in his office and in the office of the Doctor he obtained endorsement of the Doctor that patient is conscious, whereas, as per the deposition given by PW-2 - Doctor Amratlal Patel, he made an endorsement in the ward itself as the said witness was present when the dying declaration was recorded. Further, it is admitted by the investigating officer that 15 liter kerosene can/steel box was not found from the place of incident. It is also not in dispute that the investigating officer has not recorded the statement of Paresha who was the first person who informed about the incident in question to PW-8 - Pankajkumar, husband of the deceased and therefore the said witness immediately rushed to the place of incident and tried to save his wife and son. The investigating officer has though recorded the statements of the neighbours, the said witnesses were not examined by the prosecution. Thus, the prosecution has failed to prove against the respondents accused that they were giving mental torture to the deceased as alleged by the prosecution.
22. It is true that deceased Gitaben and his minor son sustained burn injuries and died due to such burn injuries. However, the question is whether the deceased Gitaben has committed suicide by pouring kerosene on herself or the incident took place in the Page 16 of 24 Downloaded on : Tue Feb 14 20:31:10 IST 2023 R/CR.A/192/1997 JUDGMENT DATED: 07/02/2023 manner in which the prosecution has tried to project by making allegations against the respondents - accused.
23. At this stage, the decision upon which reliance is placed by learned APP is required to be referred to. In the case of Veerpal and Another (supra), the Hon'ble Supreme Court has observed in para 15 as under:
"15. Even considering the medical evidence on record and the injuries sustained by the deceased, it is found that there were no injuries at all on the chest and injuries were found on the head and on the backside. As rightly observed by the Trial Court if she had committed suicide by pouring kerosene there would have been injuries on the chest as well as injuries would not have been on the head and on the backside. In our view, such injuries as found on the body of the deceased could have been possible only if somebody had poured kerosene on her from behind her. The aforesaid aspect has not at all been considered by the High Court."
23.1.In the present case, from the medical evidence i.e. P.M. report as well as the deposition given by PW-2 - Doctor Amratlal Ambalal Patel, it is clear that deceased Gitaben did not sustain any burn injuries on her head but she sustained burn injuries on chest and other parts of the body. Thus, from the medical evidence it can be said that there are all chances that the deceased committed suicide by pouring kerosene.
Page 17 of 24 Downloaded on : Tue Feb 14 20:31:10 IST 2023R/CR.A/192/1997 JUDGMENT DATED: 07/02/2023 23.2 The Hon'ble Supreme Court, in the aforesaid decision, further observed in para 17 and 18 as under:
"17. Kushal Rao V. State of Bombay, AIR 1958 SC 22:1958 SCR 552 is a watershed judgment on the law on the evidentiary value of dying declarations. This Court laid down the following principles as to the circumstances under which a dying declaration may be accepted, without corroboration:
"16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral Page 18 of 24 Downloaded on : Tue Feb 14 20:31:10 IST 2023 R/CR.A/192/1997 JUDGMENT DATED: 07/02/2023 testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."
18. The relevant facts of the said case are that the deceased therein had given three successive dying declarations within a span of two hours, which were, to a certain degree contradictory to each other. However, one of the aspects that remained common and was narrated by the deceased in all three dying declarations was that he was attacked by two persons, namely Kushal Rao and Tukaram with swords and spears. This Court, relying on the common thread running through all dying declarations, which was consistent with medical evidence revealing punctured and incised wounds on various parts of the body, held that the said declarations could be relied upon in convicting the accused who had been named in all three dying declarations."
24. From the aforesaid observations it is revealed that after the dying declaration is recorded by the competent Magistrate in a proper manner, that is to say, in the form of question and answer, the same Page 19 of 24 Downloaded on : Tue Feb 14 20:31:10 IST 2023 R/CR.A/192/1997 JUDGMENT DATED: 07/02/2023 stands on a much higher footing than the dying declaration which depends upon oral testimony and conviction can be recorded on the basis of the dying declaration without any corroboration if it is trustworthy and reliable.
25. In the present case, from the statement given by the deceased Gitaben before PW-3 - Kalyansinh Virji and the dying declaration Exh.16 recorded by PW-1 - Executive Magistrate, we are of the view that because of major discrepancies in the story put forward by deceased Gitaben before different witnesses coupled with the deposition of investigating officer and the panchnama of place of incident, the story put forward by the prosecution is not believable. As observed hereinabove, though the patient was conscious as per the case of the prosecution, she did not give the names of the respondents - accused before the Doctor when she was brought to the hospital. PW- 8 - Pankajkumar Dhobi, husband of the deceased has also specifically stated that respondents - accused were not present when he reached to his residence. The said witness, as discussed hereinabove, was not declared hostile by the prosecution.
26. We have also gone through the reasoning recorded by the learned Trial Court and we are of the view that learned Trial Court has not committed any error while passing the impugned judgment and order of acquittal.
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27. The Hon'ble Supreme Court in the case of Chandrappa (supra), observed and held in para 42 as under:
"42. From the above decisions, in our considered view, the following general principles regarding powers of 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;
(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 emphasize 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 available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless Page 21 of 24 Downloaded on : Tue Feb 14 20:31:10 IST 2023 R/CR.A/192/1997 JUDGMENT DATED: 07/02/2023 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.
28. Even otherwise, as observed by the Hon'ble Supreme Court in the aforesaid decision, 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.
29. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225). In the instant case, the learned APP for the applicant has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
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30. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.
31. We have independently re-appreciated the evidence produced by the prosecution before the learned Trial Court and also examined the reasoning recorded by the learned Trial Court while passing the impugned judgment and order of acquittal and we are of the view that if in light of the above circumstances, the learned Trial Court felt that the accused could get the benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, even though we are of the opinion that in an appeal against acquittal, powers of appellate Court are as wide as that of the Trial Court and it can review, re-appreciate and reconsider the entire evidence brought on record by the parties and can Page 23 of 24 Downloaded on : Tue Feb 14 20:31:10 IST 2023 R/CR.A/192/1997 JUDGMENT DATED: 07/02/2023 come to its own conclusion on fact as well as on law, in the the facts and circumstances of the present case as discussed hereinabove, the view taken by the learned Trial Court for acquitting the accused was possible and plausible. Therefore, on the basis of evidence, even if it is to be assumed that the other view is equally possible, even then it is well settled and well-established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the learned Trial Court, it ought not to be disturbed by the Appellate Court.
32. Considering the aforesaid facts and circumstances of the present case and the law laid down by the Hon'ble Supreme Court in the aforesaid decisions upon which reliance is placed by learned advocates appearing for the parties and while considering the scope of appeal under Section 378 of the Code, no case is made out for interference in the impugned judgment and order of acquittal passed by the concerned Trial Court. Accordingly, present appeal deserves to be dismissed and is, therefore, dismissed. The bail bond shall stand cancelled.
(VIPUL M. PANCHOLI, J) (HEMANT M. PRACHCHHAK,J) LAVKUMAR J JANI Page 24 of 24 Downloaded on : Tue Feb 14 20:31:10 IST 2023