Full Judgment Text
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2023 INSC 977
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 06 OF 2011
SHAMBHUBHAI KALABHAI RAVAL …...APPELLANT(S)
VERSUS
STATE OF GUJARAT …...RESPONDENT(S)
JUDGMENT
ABHAY S. OKA, J.
1. The appellant is the husband of the deceased, who was
convicted for the offences punishable under Sections 306 and 498A
of the Indian Penal Code (for short ‘IPC’). The marriage between
the appellant and the deceased was ten years old, when on
31.07.1994, the deceased poured kerosene on her own body and set
herself ablaze. The burn injuries suffered by her was the cause of
death, which happened on 04.08.1994. The prosecution mainly relied
upon the dying declaration of the deceased recorded by PW3-
Kachrabhai. The dying declaration was recorded between 09:45 P.M.
Signature Not Verified
Digitally signed by
Neetu Khajuria
Date: 2023.11.06
16:48:41 IST
Reason:
to 10:00 P.M. on 31.07.1994. Apart from relying upon the dying
declaration, the prosecution relied upon the evidence of PW1-
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Dolabhai, the father of the deceased and PW4- Pravin Kumar, the
brother of the deceased. Unfortunately, both the father and the
brother did not support the prosecution and they were declared
hostile. Admittedly, nothing could be brought on record in their
cross-examination conducted by the public prosecutor for the
benefit of the prosecution.
2. With the assistance of the learned counsel appearing for the
appellant, we have perused the evidence of prosecution-witnesses,
relevant documents and the dying declaration. The main submission
of the learned counsel for the appellant is that there is a serious
doubt about the correctness of the dying declaration. Another
submission is that Bhavna, the sister of the deceased was a very
important witness, who has been withheld by the prosecution. The
submissions made by the learned counsel appearing for the
respondent is that PW-3, who recorded the dying declaration was an
Executive Magistrate who had no enmity with the present appellant
and, therefore, there is no reason to disbelieve his testimony. Her
submission is that though the dying declaration may not bear an
endorsement of the doctor recording the fitness of the deceased to
make a statement, on the Yadi forwarded by the police, the doctor
had certified her fitness.
3. As stated earlier, the evidences of PW-1 and PW-4, the father
and brother of the deceased do not help the prosecution as they did
not support the prosecution. Now, what remains is that the dying
declaration. If the conviction is to be based only on the dying
declaration, necessarily, it must be of an unimpeachable quality.
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Before we go into the issue of the doubts expressed by the learned
counsel appearing for the appellant about the dying declaration, it
is necessary to make a reference to what the deceased purportedly
stated in her dying declaration. Answers to question Nos. 6 and 7
are most material which read thus: -
“6. What is done to you?
Answer : Today at 7.00 p.m. I was prepared dinner. When
my sister came at my house at that time, my mother-in-
law was quarrelling with me. My husband had given 2-3
sticks blows to me and due to unbearable pain; I poured
kerosene on my body and put fire myself. My sister
Bhavna was came to meet me.
7. How this incident happened?
Answer : That quarrel took place alternatively with my
mother-in-law and due to this incident took place.”
4. On a conjoint reading of answers given to question Nos. 6
and 7, assuming that what is stated therein is correct, we find
that according to the deceased, it was the conduct of the mother-
in-law, which prompted her to take the extreme step. It is pointed
out that initially the mother-in-law was made an accused but she
died. Taking the allegation made by way of answer to question No. 6
against the appellant-husband as correct, it is not sufficient to
come to the conclusion that the act done by the husband was the
cause for immediate instigation to the deceased to take the extreme
step of burning herself.
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5. What is most important is that Bhavna, the sister of the
deceased was present when the alleged act of mother-in-law
quarreling with the deceased and her husband giving two or three
stick blows to the deceased took place. The prosecution has not
explained why the evidence of this material witness was withheld
from the Court. This is one reason for drawing an adverse inference
against the prosecution.
6. There are other factors on the basis which we can say that the
dying declaration is not free from a serious doubt. The said
reasons are as under:-
(i) The dying declaration itself does not bear the endorsement of
the doctor regarding the fitness of the deceased to make a
statement;
(ii) A panchnama (Exhibit ‘29’) was recorded around 10:10 P.M. on
31.07.1994, which records that the deceased was barely able to tell
her name and she stated that she could not speak. The alleged dying
declaration was recorded between 09:45 P.M. to 10:00 P.M.;
(iii) Even the police personnel, who recorded the panchnama has
stated that the deceased was not in a position to speak; and
(iv) PW5 - Dr. Rajendra, who examined the deceased stated in the
cross-examination that when he asked the deceased about the cause
of burn injuries, she disclosed that she poured kerosene on
herself. But she gave no reason why she did the act.
7. These factors taken together create a serious doubt about the
correctness of the dying declaration. Therefore, the dying
declaration will have to be kept out of consideration. In any case,
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the dying declaration is not of that sterling quality on which the
conviction can be based in absence of any other evidence.
Therefore, the prosecution has failed to prove the guilt of the
appellant beyond a reasonable doubt. The appeal succeeds and the
impugned orders are quashed and set aside. The appellant is
acquitted.
8. As the appellant is on bail, his bail bond stands cancelled.
9. The appeal is, accordingly, allowed on above terms.
10. Pending application(s), if any, shall stand disposed of.
…………………………...J.
[ABHAY S. OKA]
…………………………...J.
[PANKAJ MITHAL]
NEW DELHI;
NOVEMBER 02, 2023.