Gujarat High Court
Jankiben Ambalal Atmaram Lodha vs State Of Gujarat on 17 January, 2017
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, A.J. Shastri
R/CR.MA/35168/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
35168 of 2016
In
CRIMINAL APPEAL NO. 1830 of 2016
================================================================
JANKIBEN AMBALAL ATMARAM LODHA....Applicant
Versus
STATE OF GUJARAT....Respondent
================================================================
Appearance:
MR RAMNANDAN SINGH, ADVOCATE for the Applicant
MR LR POOJARI APP for the Respondent No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 17/01/2017
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT)
1. Rule. Mr. Poojari, learned APP waives service of notice of Rule on behalf of respondent State. By consent, Rule is fixed forthwith.
2. The applicant, who happened to the accused no.2 in Sessions Case No. 153 of 2013, has taken out this Criminal Appeal No. 1830 of 2016 as well as Criminal Misc. Application No. 35168 of 2016 under Section 389 of the Code of Criminal Procedure for appropriate relief including the regular bail during pendency of Appeal, as this Court has already admitted the Appeal.
Page 1 of 5
HC-NIC Page 1 of 5 Created On Sat Aug 12 12:11:51 IST 2017
R/CR.MA/35168/2016 ORDER
3. Learned counsel appearing for the applicant has invited this Court's attention to the Dying Declaration at page-132 of the paper book supplied by him for indicating that said Dying Declaration does not bear any endorsement indicating that patient was fully conscious and in proper orientation. The counsel for the applicant has also invited this Court's attention to page-242, which seems to be Yadi for calling the Executive Magistrate for recording the Dying Declaration and on that Yadi, the endorsement made by Doctor in English is sought to be emphasized to indicate that said endorsement bears the date of 13/10/2012, which should have been 12/10/2012 and this discrepancy is sought to be clarified by the Doctor in his deposition by saying that it was the mistake.
4. Learned counsel appearing for the applicant also invited this Court's attention to the testimony of the PW-5 and PW-6 as well as daughter of deceased to support his contention that the incident caused to death of deceased was in any manner on account of any overt-act attributable to present applicant.
5. Learned counsel appearing for the applicant also invited this Court's attention to the fact that applicant accused and others have been exonerated and acquitted of the charge of inflicting cruelty under Section 498A and in that view of the matter, the Dying Declaration alone which also has glaring discrepancy could not have been made basis for bringing home guilt on the part of applicant so as to impose upon him the punishment of life imprisonment and fine. The applicant accused is 70 years old lady and during trial also, she was not granted bail and she has already undergone 4 years and 3 month custody and in that view of the matter, this Court may exercise discretion in favour of the applicant and enlarge the applicant on appropriate terms and condition.
Page 2 of 5
HC-NIC Page 2 of 5 Created On Sat Aug 12 12:11:51 IST 2017
R/CR.MA/35168/2016 ORDER
6. Learned counsel appearing for the applicant has also invited this Court's attention to the medical history produced at page-245 and submitted that the history given by the patient also indicates that the same was contrary to Dying Declaration and Dying Declaration therefore looses its sanctity and ought not to have been relied upon by the Court for inflicting punishment upon the applicant.
7. Learned APP appearing for respondent State contended that the stereotype deposition of witnesses, who have been turned hostile, cannot be said to be so great an evidence as to exercise discretion in favour of applicant at this stage. Moreover, there is mark discrepancy between the narration given of the incident as given by daughter of deceased and neighbours and learned APP submitted that hostile witnesses submission shall not further the case of applicant on bail in any manner.
8. The Court had to peruse few pages of the paper book supplied by counsel for the applicant only for examining the contentions for exercising discretion in favour of applicant. The close perusal of history said to have been given by the applicant is prima-facie indicative of the history which is ordinarily not recorded in the same fashion. The elaborate discussion and emphasis upon the patient giving the history also to be borne in mind for examining its veracity. The Dying Declaration is unequivocally clear qua the role of the mother-in-law and cause of quarrel. The same is clear by the Doctor at the end of declaration, as could be seen from page-244, in which, the Doctor has clearly endorsed that the patient is in conscious condition and in proper orientation. That endorsement bears the correct date i.e. 12.10.2012. The said endorsement, if is placed in juxtaposition with the yadi, which also contained the Page 3 of 5 HC-NIC Page 3 of 5 Created On Sat Aug 12 12:11:51 IST 2017 R/CR.MA/35168/2016 ORDER incorrect date, would not have effect of outweighing the endorsement made by the doctor on the dying declaration at the end of dying declaration. The same, therefore, could not be brushed aside or overlooked in any manner, while considering the question of bail at this stage.
9. It is also required to be noted at this stage that deceased has in unequivocal terms said that left out kerosene was poured and that gets corroboration on close perusal of scene of panchnama at page- 241/C. The fact remains to be noted that the applicant has no right to claim benefits at this stage of presumption of innocence as she has been convicted by the competent Court.
10.Moreover, it is required to be noted that dying declaration has been corroborated by the unblemished deposition of Executive Magistrate at page-165 and in absence of any motive attributed to the Mamlatdar - Executive Magistrate, there is corroborative reason in accepting the same. The dying lady would not ordinarily tell lie or implicate any person, in absence of any other evidence to show in other state of mind. Moreover, it is required to be noted that when the charge of torture is not sustained against others, there would not have been any corroborative reason for dying person to indicate wrongful against mother-in-law.
11.In that view of the matter, we are not inclined to exercise discretion in favour of applicant. As a result thereof, the application fails and is hereby rejected. The observations made in this order, are prima- facie to decide the bail application only and it does not have any bearing at the time of hearing of Criminal Appeal. Rule is discharged.
Page 4 of 5 HC-NIC Page 4 of 5 Created On Sat Aug 12 12:11:51 IST 2017 R/CR.MA/35168/2016 ORDER (S.R.BRAHMBHATT, J.) (A.J. SHASTRI, J.) pallav Page 5 of 5 HC-NIC Page 5 of 5 Created On Sat Aug 12 12:11:51 IST 2017