Full Judgment Text
2025 INSC 1268
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1934 OF 2017
JEMABEN …APPELLANT(S)
Versus
THE STATE OF GUJARAT …RESPONDENT(S)
J U D G M E N T
VIPUL M. PANCHOLI, J.
1. The present appeal has been directed against the final order
dated 21.07.2016 passed by the High Court of Gujarat at
Ahmedabad in Criminal Appeal No. 539 of 2006, by which
the High Court has allowed the appeal filed by the State of
Gujarat qua the present appellant/accused, and thereby,
partly set aside the judgment dated 19.11.2005 rendered by
th
the Additional Sessions Judge and Presiding Officer, 6 Fast
Signature Not Verified
Digitally signed by
KANCHAN CHOUHAN
Date: 2025.10.29
17:23:51 IST
Reason:
Track Court, Banaskantha, at Deesa in Sessions Case
Page 1 of
Criminal Appeal No. 1934 OF 2017
11
Number 40 of 2005. Thus, the High Court convicted the
appellant/accused for committing the offence punishable
under Section 302 of the Indian Penal Code, 1860
(hereinafter referred to as “the IPC”) and sentenced with
imprisonment for life and a fine of ₹ 10,000/-, and in
default to further undergo simple imprisonment of one
month.
2. The brief facts of the present case are as under:-
(i) It is the case of the prosecution that the
appellant/accused and the co-accused, Bherabhai
Revaji Majirana, entered into criminal conspiracy in
order to kill Leelaben and Ganesh, her son, and to
execute the said conspiracy, on the date of the
incident, i.e. the intervening night of 29.11.2004 and
30.11.2004, when Leelaben and her son were sleeping
in their hut, the appellant/accused poured kerosene
upon Leelaben and set her ablaze. As a result,
Leelaben received severe burn injuries and she was
taken to the Civil Hospital, Palanpur. On 04.12.2004,
Leelaben succumbed to the injuries, and her son
received burn injuries to the extent of 10 to 12%.
Page 2 of
Criminal Appeal No. 1934 OF 2017
11
(ii) On 05.12.2004, the complaint was filed by PW-1,
Geetaben (sister of Leelaben). On the basis of the
complaint, the investigating officer carried out the
investigation and during the course of the
investigation, the statement of the witnesses were
recorded, the evidence was collected and thereafter the
chargesheet was filed against both the accused
persons. The charges were framed for offences
punishable under Sections 302, 307, 436, 34, 120 (b)
of the IPC and Section 135 of the Bombay Police
Act,1951.
(iii) The Trial Court acquitted both the accused persons,
mainly on the ground that there are discrepancies in
three dying declarations given by Leelaben, the
deceased.
(iv) The State of Gujarat challenged the order of acquittal
by filing a Criminal Appeal before the High Court. The
High Court vide the impugned order allowed the appeal
qua the appellant/accused and thereby, set aside the
order of acquittal passed by the concerned trial court.
The High Court convicted the appellant/accused for
Page 3 of
Criminal Appeal No. 1934 OF 2017
11
committing the offence punishable under Section 302
of the IPC.
3. Against the impugned order passed by the High Court, the
appellant/accused has preferred the present appeal.
4. Learned Counsel appearing for the appellant/accused
mainly contended that the case of the prosecution rests
primarily on the dying declaration given by the deceased.
However, there are major discrepancies in the story put
forward by the prosecution. In fact, version of the
complainant (PW-1), Kalubhai Lakhuji (PW-4, husband of
Leelaben), as well as other documentary evidence contain
major discrepancies, inconsistencies and material
contradictions. Thus, the trial court has rightly acquitted
the appellant/accused, despite which, the High Court has,
substantially relied upon the deposition given by Dr.
Shivrambhai Nagarbhai Patel, (PW-3, Incharge Medical
Officer) as well as relied upon the Yadi given by the said
Doctor to the Police, which mentioned the history given by
the deceased before the said witness, and thereby recorded
the order of conviction of the appellant/accused. Learned
Counsel submitted that the High Court has committed grave
Page 4 of
Criminal Appeal No. 1934 OF 2017
11
error while relying upon the Medical Certificates of Leelaben
and Ganesh (Exhibit 20 and 21, respectively).
5. It is further submitted that because there are major
discrepancies in the three dying declarations given by the
deceased, the trial court has acquitted the
appellant/accused by giving benefit of doubt to the
appellant/accused. Therefore, even if there are two views
possible on the basis of the evidence led by the prosecution
before the trial court, when the trial court has taken the one
possible view, the High Court ought not to have interfered
with the said view taken by the trial court. Learned Counsel
for the appellant/accused, therefore, urged that the
impugned order passed by the High Court be set aside and
thereby, the appellant/accused be acquitted.
6. Per contra , learned counsel appearing for the respondent-
state has vehemently opposed the present appeal. Learned
Counsel for the State mainly submitted that, in the case of
multiple dying declarations, each dying declaration will have
to be considered independently on its own merit as to its
evidentiary value and one cannot be rejected because of the
contents of the other. It is submitted that in the present
Page 5 of
Criminal Appeal No. 1934 OF 2017
11
case, even though the dying declaration has not been
recorded by the Executive Magistrate, it is clear from the
medical certificate issued by PW-3, that the statement of the
deceased, recorded first in point of time, reveals that the
deceased was burnt by the appellant/accused, who was the
aunt-in-law of the deceased, by pouring kerosene from the
tin and setting the deceased on fire. On the very same day,
the deceased described the motive behind the incident that
the appellant/accused was compelling the deceased to go
with one, Mania Dabhawala, with whom the
appellant/accused was acquainted and refusal by the
deceased thereto, resulted into the incident in question. It is
further submitted that from the postmortem report (Exhibit
25), and severe burn injuries sustained by the deceased
almost all over the body and the manner in which the burn
injuries were caused, would reveal that it was not the case
of an accidental death.
7. Learned Counsel for the respondent-State further referred to
the panchnama (Exhibit 12) and submitted that one empty
kerosene container having smell of kerosene was found at
the place of incident. Similarly, soil having smell of kerosene
Page 6 of
Criminal Appeal No. 1934 OF 2017
11
was also collected from the place of incident. At this stage, it
is further submitted that even PW-3 deposed that the whole
body and clothing of the deceased was having the smell of
kerosene and she sustained 100% burn injuries.
8. Learned Counsel for the respondent-State, lastly, contended
that the son of the deceased was sleeping beside the
deceased. However, from the Medical Certificate issued by
PW-3, it is revealed that the said boy, aged about 4 years,
sustained 10-12% burn injuries. Learned Counsel for the
respondent-State, therefore, contended that from the
aforesaid evidence led by the prosecution, it can be said that
the dying declaration given by the deceased before the
independent witness, i.e. PW-3, is rightly relied upon by the
High Court. It is further submitted that there was only one
possible view on the basis of the aforesaid evidence which
was required to be taken by the trial court, and therefore,
when the trial court has not properly appreciated the
aforesaid important aspects/evidence in the present matter,
the High Court has rightly set aside the order of acquittal
passed by the trial court qua the appellant/accused.
Learned Counsel, therefore, urged that no interference is
Page 7 of
Criminal Appeal No. 1934 OF 2017
11
required in the impugned order of the High Court and the
present appeal is liable to be dismissed.
9. We have considered the submissions canvassed by the
learned counsel for the parties. We have also perused the
entire record and the evidence led by the prosecution.
10. It emerged from the record that when the deceased was
brought to the hospital, she narrated the incident before the
Doctor (PW-3) wherein she specifically stated that “my aunt-
in-law, Jemaben poured kerosene on me and set ablaze.”
Further, when she was asked again by the doctor, she
disclosed that “my aunt-in-law asked me to go with Mania
Dabhawala, I refused for the same and, therefore, she burnt
me alive”. It is pertinent to note that the aforesaid
documentary evidence was duly proved as per the testimony
of PW-3. Similarly, the Yadi given by the Doctor to Police
Station, Palanpur city, further suggests that deceased
specifically narrated that the appellant/accused, her aunt-in-
law, set her ablaze. It is also specifically stated by the Doctor
in the said Yadi that the patient was conscious and she was
in a position to speak. Therefore, the said police officer was
asked to make arrangements for recording the dying
Page 8 of
Criminal Appeal No. 1934 OF 2017
11
declaration of the deceased. At this stage, it is also relevant to
observe that the Medical Certificate of the deceased also
states that the “whole body and clothing having kerosene
smelling burns about 100%”.
11. From the panchnama, it further transpires that
investigating agency found “one empty container having
kerosene smell” from the place of incident. Similarly, the soil
of the surface of the hut (the place of incident) was having
smell of kerosene. Thus, the aforesaid document also
corroborates the version given by the deceased before the
independent witness, i.e. PW-3, the Doctor. At this stage, it
is also relevant to observe that PW-3 deposed before the court
that the son of the deceased, aged about 4 years, was
brought before him by the relatives of the deceased and when
inquired they told that the said boy sustained burn injuries
along with his mother. It is further stated by the said witness
that the said boy sustained 10-12% burn injuries on his
lower legs and feet. Thus, from the aforesaid evidence led by
the prosecution, it is revealed that the dying declaration
given by the deceased before the Doctor is supported by other
evidence led by the prosecution.
Page 9 of
Criminal Appeal No. 1934 OF 2017
11
12. On perusal, it is clear that the deceased sustained 100%
burn injuries and from the whole body and the clothes of the
deceased, the smell of kerosene was found. However, the 4
years old son of the deceased was sleeping beside the
deceased and he sustained only 10-12% burn injuries. Thus,
the theory of accidental fire at the place of incident put
forward by the appellant/accused cannot be believed.
13. We are of the view that merely because there are minor
discrepancies in the version given by the prosecution witness
with regard to the dying declaration and with regard to the
manner of occurrence of the incident, the first dying
declaration given by the deceased before the independent
witness, i.e PW-3, cannot be ignored. The first dying
declaration is supported by the independent documentary
evidence, and therefore, the High Court has rightly placed
reliance upon the decision rendered by this Court in the case
of Nallam Veera Stayanandam & Ors. v. Public
Prosecutor, High Court of A.P., (2004) 10 SCC 769 , and
thereby, rightly set aside the order of acquittal rendered by
the trial court qua the appellant/accused.
Page 10 of
Criminal Appeal No. 1934 OF 2017
11
14. We are also of the view that on the basis of the aforesaid
evidence as discussed hereinabove, only one view was
possible, despite which, the trial court had acquitted the
appellant/accused. Thus, the High Court has rightly set
aside the order of the trial court.
15. In view of the aforesaid facts and circumstances of the
present case set out in the detailed analysis above, we are of
the view that no interference is required in the impugned
judgment passed by the High Court in Criminal Appeal
Number 539 of 2006. Accordingly, the present appeal stands
dismissed.
.......……….…………………….J.
[RAJESH BINDAL]
...….....………………………….J.
[VIPUL M. PANCHOLI]
NEW DELHI,
OCTOBER 29, 2025.
Page 11 of
Criminal Appeal No. 1934 OF 2017
11
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1934 OF 2017
JEMABEN …APPELLANT(S)
Versus
THE STATE OF GUJARAT …RESPONDENT(S)
J U D G M E N T
VIPUL M. PANCHOLI, J.
1. The present appeal has been directed against the final order
dated 21.07.2016 passed by the High Court of Gujarat at
Ahmedabad in Criminal Appeal No. 539 of 2006, by which
the High Court has allowed the appeal filed by the State of
Gujarat qua the present appellant/accused, and thereby,
partly set aside the judgment dated 19.11.2005 rendered by
th
the Additional Sessions Judge and Presiding Officer, 6 Fast
Signature Not Verified
Digitally signed by
KANCHAN CHOUHAN
Date: 2025.10.29
17:23:51 IST
Reason:
Track Court, Banaskantha, at Deesa in Sessions Case
Page 1 of
Criminal Appeal No. 1934 OF 2017
11
Number 40 of 2005. Thus, the High Court convicted the
appellant/accused for committing the offence punishable
under Section 302 of the Indian Penal Code, 1860
(hereinafter referred to as “the IPC”) and sentenced with
imprisonment for life and a fine of ₹ 10,000/-, and in
default to further undergo simple imprisonment of one
month.
2. The brief facts of the present case are as under:-
(i) It is the case of the prosecution that the
appellant/accused and the co-accused, Bherabhai
Revaji Majirana, entered into criminal conspiracy in
order to kill Leelaben and Ganesh, her son, and to
execute the said conspiracy, on the date of the
incident, i.e. the intervening night of 29.11.2004 and
30.11.2004, when Leelaben and her son were sleeping
in their hut, the appellant/accused poured kerosene
upon Leelaben and set her ablaze. As a result,
Leelaben received severe burn injuries and she was
taken to the Civil Hospital, Palanpur. On 04.12.2004,
Leelaben succumbed to the injuries, and her son
received burn injuries to the extent of 10 to 12%.
Page 2 of
Criminal Appeal No. 1934 OF 2017
11
(ii) On 05.12.2004, the complaint was filed by PW-1,
Geetaben (sister of Leelaben). On the basis of the
complaint, the investigating officer carried out the
investigation and during the course of the
investigation, the statement of the witnesses were
recorded, the evidence was collected and thereafter the
chargesheet was filed against both the accused
persons. The charges were framed for offences
punishable under Sections 302, 307, 436, 34, 120 (b)
of the IPC and Section 135 of the Bombay Police
Act,1951.
(iii) The Trial Court acquitted both the accused persons,
mainly on the ground that there are discrepancies in
three dying declarations given by Leelaben, the
deceased.
(iv) The State of Gujarat challenged the order of acquittal
by filing a Criminal Appeal before the High Court. The
High Court vide the impugned order allowed the appeal
qua the appellant/accused and thereby, set aside the
order of acquittal passed by the concerned trial court.
The High Court convicted the appellant/accused for
Page 3 of
Criminal Appeal No. 1934 OF 2017
11
committing the offence punishable under Section 302
of the IPC.
3. Against the impugned order passed by the High Court, the
appellant/accused has preferred the present appeal.
4. Learned Counsel appearing for the appellant/accused
mainly contended that the case of the prosecution rests
primarily on the dying declaration given by the deceased.
However, there are major discrepancies in the story put
forward by the prosecution. In fact, version of the
complainant (PW-1), Kalubhai Lakhuji (PW-4, husband of
Leelaben), as well as other documentary evidence contain
major discrepancies, inconsistencies and material
contradictions. Thus, the trial court has rightly acquitted
the appellant/accused, despite which, the High Court has,
substantially relied upon the deposition given by Dr.
Shivrambhai Nagarbhai Patel, (PW-3, Incharge Medical
Officer) as well as relied upon the Yadi given by the said
Doctor to the Police, which mentioned the history given by
the deceased before the said witness, and thereby recorded
the order of conviction of the appellant/accused. Learned
Counsel submitted that the High Court has committed grave
Page 4 of
Criminal Appeal No. 1934 OF 2017
11
error while relying upon the Medical Certificates of Leelaben
and Ganesh (Exhibit 20 and 21, respectively).
5. It is further submitted that because there are major
discrepancies in the three dying declarations given by the
deceased, the trial court has acquitted the
appellant/accused by giving benefit of doubt to the
appellant/accused. Therefore, even if there are two views
possible on the basis of the evidence led by the prosecution
before the trial court, when the trial court has taken the one
possible view, the High Court ought not to have interfered
with the said view taken by the trial court. Learned Counsel
for the appellant/accused, therefore, urged that the
impugned order passed by the High Court be set aside and
thereby, the appellant/accused be acquitted.
6. Per contra , learned counsel appearing for the respondent-
state has vehemently opposed the present appeal. Learned
Counsel for the State mainly submitted that, in the case of
multiple dying declarations, each dying declaration will have
to be considered independently on its own merit as to its
evidentiary value and one cannot be rejected because of the
contents of the other. It is submitted that in the present
Page 5 of
Criminal Appeal No. 1934 OF 2017
11
case, even though the dying declaration has not been
recorded by the Executive Magistrate, it is clear from the
medical certificate issued by PW-3, that the statement of the
deceased, recorded first in point of time, reveals that the
deceased was burnt by the appellant/accused, who was the
aunt-in-law of the deceased, by pouring kerosene from the
tin and setting the deceased on fire. On the very same day,
the deceased described the motive behind the incident that
the appellant/accused was compelling the deceased to go
with one, Mania Dabhawala, with whom the
appellant/accused was acquainted and refusal by the
deceased thereto, resulted into the incident in question. It is
further submitted that from the postmortem report (Exhibit
25), and severe burn injuries sustained by the deceased
almost all over the body and the manner in which the burn
injuries were caused, would reveal that it was not the case
of an accidental death.
7. Learned Counsel for the respondent-State further referred to
the panchnama (Exhibit 12) and submitted that one empty
kerosene container having smell of kerosene was found at
the place of incident. Similarly, soil having smell of kerosene
Page 6 of
Criminal Appeal No. 1934 OF 2017
11
was also collected from the place of incident. At this stage, it
is further submitted that even PW-3 deposed that the whole
body and clothing of the deceased was having the smell of
kerosene and she sustained 100% burn injuries.
8. Learned Counsel for the respondent-State, lastly, contended
that the son of the deceased was sleeping beside the
deceased. However, from the Medical Certificate issued by
PW-3, it is revealed that the said boy, aged about 4 years,
sustained 10-12% burn injuries. Learned Counsel for the
respondent-State, therefore, contended that from the
aforesaid evidence led by the prosecution, it can be said that
the dying declaration given by the deceased before the
independent witness, i.e. PW-3, is rightly relied upon by the
High Court. It is further submitted that there was only one
possible view on the basis of the aforesaid evidence which
was required to be taken by the trial court, and therefore,
when the trial court has not properly appreciated the
aforesaid important aspects/evidence in the present matter,
the High Court has rightly set aside the order of acquittal
passed by the trial court qua the appellant/accused.
Learned Counsel, therefore, urged that no interference is
Page 7 of
Criminal Appeal No. 1934 OF 2017
11
required in the impugned order of the High Court and the
present appeal is liable to be dismissed.
9. We have considered the submissions canvassed by the
learned counsel for the parties. We have also perused the
entire record and the evidence led by the prosecution.
10. It emerged from the record that when the deceased was
brought to the hospital, she narrated the incident before the
Doctor (PW-3) wherein she specifically stated that “my aunt-
in-law, Jemaben poured kerosene on me and set ablaze.”
Further, when she was asked again by the doctor, she
disclosed that “my aunt-in-law asked me to go with Mania
Dabhawala, I refused for the same and, therefore, she burnt
me alive”. It is pertinent to note that the aforesaid
documentary evidence was duly proved as per the testimony
of PW-3. Similarly, the Yadi given by the Doctor to Police
Station, Palanpur city, further suggests that deceased
specifically narrated that the appellant/accused, her aunt-in-
law, set her ablaze. It is also specifically stated by the Doctor
in the said Yadi that the patient was conscious and she was
in a position to speak. Therefore, the said police officer was
asked to make arrangements for recording the dying
Page 8 of
Criminal Appeal No. 1934 OF 2017
11
declaration of the deceased. At this stage, it is also relevant to
observe that the Medical Certificate of the deceased also
states that the “whole body and clothing having kerosene
smelling burns about 100%”.
11. From the panchnama, it further transpires that
investigating agency found “one empty container having
kerosene smell” from the place of incident. Similarly, the soil
of the surface of the hut (the place of incident) was having
smell of kerosene. Thus, the aforesaid document also
corroborates the version given by the deceased before the
independent witness, i.e. PW-3, the Doctor. At this stage, it
is also relevant to observe that PW-3 deposed before the court
that the son of the deceased, aged about 4 years, was
brought before him by the relatives of the deceased and when
inquired they told that the said boy sustained burn injuries
along with his mother. It is further stated by the said witness
that the said boy sustained 10-12% burn injuries on his
lower legs and feet. Thus, from the aforesaid evidence led by
the prosecution, it is revealed that the dying declaration
given by the deceased before the Doctor is supported by other
evidence led by the prosecution.
Page 9 of
Criminal Appeal No. 1934 OF 2017
11
12. On perusal, it is clear that the deceased sustained 100%
burn injuries and from the whole body and the clothes of the
deceased, the smell of kerosene was found. However, the 4
years old son of the deceased was sleeping beside the
deceased and he sustained only 10-12% burn injuries. Thus,
the theory of accidental fire at the place of incident put
forward by the appellant/accused cannot be believed.
13. We are of the view that merely because there are minor
discrepancies in the version given by the prosecution witness
with regard to the dying declaration and with regard to the
manner of occurrence of the incident, the first dying
declaration given by the deceased before the independent
witness, i.e PW-3, cannot be ignored. The first dying
declaration is supported by the independent documentary
evidence, and therefore, the High Court has rightly placed
reliance upon the decision rendered by this Court in the case
of Nallam Veera Stayanandam & Ors. v. Public
Prosecutor, High Court of A.P., (2004) 10 SCC 769 , and
thereby, rightly set aside the order of acquittal rendered by
the trial court qua the appellant/accused.
Page 10 of
Criminal Appeal No. 1934 OF 2017
11
14. We are also of the view that on the basis of the aforesaid
evidence as discussed hereinabove, only one view was
possible, despite which, the trial court had acquitted the
appellant/accused. Thus, the High Court has rightly set
aside the order of the trial court.
15. In view of the aforesaid facts and circumstances of the
present case set out in the detailed analysis above, we are of
the view that no interference is required in the impugned
judgment passed by the High Court in Criminal Appeal
Number 539 of 2006. Accordingly, the present appeal stands
dismissed.
.......……….…………………….J.
[RAJESH BINDAL]
...….....………………………….J.
[VIPUL M. PANCHOLI]
NEW DELHI,
OCTOBER 29, 2025.
Page 11 of
Criminal Appeal No. 1934 OF 2017
11