Nurmamad Hajibhai Opponents/Respondent

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 180 of 1992 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE M.R. SHAH ­sd/­ and HONOURABLE MR.JUSTICE S.H.VORA ­ sd/­ =============================================

============================================= STATE OF GUJARAT Appellant(s) Versus NURMAMAD HAJIBHAI. Opponent(s)/Respondent(s) ============================================= Appearance:

MS. C.M. SHAH ADDL. PUBLIC PROSECUTOR for the Appellant(s) No. 1 MR.K S CHANDRANI, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 RULE SERVED BY DS for the Opponent(s)/Respondent(s) No. 1 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE S.H.VORA Date : 18 /12/2012 CAV JUDGEMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH)

1.0 Present appeal under Section 378 of the Code of Criminal Procedure has been preferred by the appellant herein ­State of Gujarat challenging the impugned judgment and order of acquittal passed by the learned Additional Sessions Judge, Rajkot dated 21.10.1991 passed in Sessions Case No. 55 of 1990, by which, the learned Judge has acquitted the respondent herein­ original accused for the offences punishable under Sections 302 and 504 of the Indian Penal Code.

2.0 That the deceased Sharifaben and respondent herein­ original accused (hereinafter referred to as the “accused”) were husband and wife residing at Rajkot. That on 12.6.1990 at about 24.00 hours (12.00 mid night) the said Sharifaben sustained burn injury by pouring kerosene on her by the accused as he was having illicit relation with one Bhavna. That immediately she was taken to the Civil Hospital and the Doctor informed the Police and on the basis of the information given by one Govindbhai Motibhai in­ charge PSO in Hospital, to the PSO, Rajkot B Division Police Station by station diary entry no.3 a Janavajog entry was made, in which, it was stated that the said Sharifaben told the said Govindbahi Motibhai that she herself has poured the kerosene on her and set her on fire (the aforesaid shall be dealt with hereinafter). It appears that immediately thereafter one Shri A.Y. Patel was sent to the Civil Hospital who recorded the statement of Sharifaben, in which, she specifically stated that her husband poured the kerosene on her and set her on fire. The statement of the Sharifaben was registered as FIR and which was sent to the concerned Police Station ­Rajkot “B” Division Police Station at 4.00 clock and the same was recorded in entry no.4 in the station diary and thereafter same was registered as FIR being CR­I­ No.226 of 1990 against the respondent accused initially for the offences punishable under Sections 307 and 504 of the Indian Penal Code. It is required to be noted at this stage that the statement of the Sharifaben at Exh.31 was recorded by the said Shri A.Y. Patel, PSI at about 1.30 a.m and the said statement also bares her thumb impression. That immediately thereafter at about 2.10 a.m the said Shri A.Y. Patel sent a Yadi to the Executive Magistrate­Shri Khimjibhai Govindbhai for recording dying declaration (Exh.22) and immediately thereafter the said Executive Magistrate ­Shri Khimjibhai Govindbhai recorded the dying declaration of Sharifaben, in which, she specifically stated that her husband poured the kerosene on her and set her on fire. It is also required to be noted that said dying declaration also bares her thumb impression and in the said dying declaration there is endorsement by the concerned Doctor that she is conscious all throughout. That one Shri Amrutlal Devjibhai Parmar­Doctor initially gave medical treatment to her and thereafter the concerned Doctor ­ Shri Pandya gave medical treatment to Sharifaben in the presence of the said Dr. Shri Parmar. That thereafter the investigation was handed over to one Dolatsinh Bhupatsinh as a Senior PSI at about 7.00 a.m on 12.6.1990. That the said Investigating Officer during the investigation recorded the statements of as many as 31 witnesses inclusive of relatives, neighbors etc. He also prepared the panchnama of scene of offence and arrested the accused on 12.6.1990 at 12.30 hours. It appears that thereafter, the investigation was carried out by Inspector Shri C.T. Sonara. That for whole day i.e. on 12.6.1990 the said Sharifaben was given the medical treatment (as per Exhs. 18 and 19) however unfortunately on the next day on 13.6.1990 at 18.15 a.m. the said Sharifaben succumbed to burn injury and she died and Yadi about her death was sent to Rajkot “B” Division Police Station and therefore offences punishable under Sections 302 was added. The Investigating Officer drawn the inquest panchnama. The postmortem was performed by Dr. Amrutlal Parmar on 13.6.1990 (Exh.17) in which, cause of death was shown as “shock due to extensive burns”. That after the investigation was concluded, the Investigating Officer submitted the chargesheet against the accused for the offences punishable under Sections 302 and 504 of the Indian Penal Code in the Court of learned Chief Judicial Magistrate. As the case was exclusively triable by Court of Sessions, the Chief Judicial Magistrate committed the case to the Sessions Court, Rajkot which was numbered as Sessions Case No. 55 of 1990. The accused appeared before the learned Sessions Court and he pleaded not guilty. The learned Sessions Court framed the charge against the accused for the offences punishable under Sections 302 and 504 of the Indian Penal Code and as the accused pleaded not guilty, he came to be tried by the learned Sessions Court, Rajkot for the offences punishable under Sections 302 and 504 of the Indian Penal Code.

2.1. During the trial, the prosecution submitted the list of documents and certain documents came to be admitted by the defence inclusive of medical treatment papers. That the prosecution also submitted the purshis at Exh.43 to drop the certain witnesses and also the witnesses who came to be examined. The prosecution dropped the panch witnesses as the panchnama was admitted by the defence. The prosecution also dropped the Medical Officer who gave the medical treatment to the deceased as the medical treatment certificates (which were exhibited at Exhs. 18 and 19) were admitted by the defence. The prosecution also dropped the certain other witnesses inclusive of one Arab Abdulbhai.

2.2. To prove the case against the accused, the prosecution examined Dr. Amrutlal Devjibhai Parmar ­PW No.1 at Exh.15. That the said Medical Officer performed the postmortem on the dead body on 13.6.1990 as well as medical treatment was given to the deceased in his presence. That the prosecution examined PW No.2 Khimjibhai Govindbhai ­Executive Magistrate who recorded the dying declaration at Exh.21. The prosecution also examined PW No.3 Anandiprasad Ramprasad ­PSO Rajkot “B” Division Police Station at Exh.25. The prosecution also examined PW No. 4 Shri A.Y. Patel ­PSI­Rajkot “B” Division Police Station who at about 1.30 a.m recorded the statement of Sharifaben at Exh.31 which was subsequently registered as FIR being CR­I­No. 226 of 1990 and who also sent Yadi at 2.10 a.m to the Executive Magistrate for recording the dying declaration of the Sharifaben. That the said Shri A.Y. Patel also drawn the panchnama of physical condition/ body of the Sharifaben between 2.05 a.m to 2.35 a.m (Exh.7) and also prepared other panchnamas. The prosecution also examined PW NO.5 ­Govindbhai Motibhai in­charge PSO in Civil Hospital at Exh.34 who sent the information to the concerned Police Station at about 1.a.m early in the morning on 12.6.1990 that Sharifaben told him that she herself poured the kerosene on her. The prosecution also examined the PW No.6 Jenuben Abdullabhai ­mother of the Sharifaben at Exh.35 as well as PW No.7 Hanifaben Aarabbhai­ Bhabhi of the Sharifaben and PW No.8 Batukgiri Mohangiri ­neighbor of original accused at Exh.37, however all the aforesaid three witnesses were declared hostile by the prosecution as they did not support the prosecution case. The prosecution also examined PW No.9 Dolatsinh Bhupatsinh ­Investigating Officer who was handed over the investigation of the case at 7.00 a.m on 12.6.1990 who investigated the case till the investigation was handed over to Inspector Shri C.T. Sonara at Exh.41.

2.3. To prove the case against the accused the prosecution also led/ produced the documentary evidences such as medical treatment papers at Exh.19; station diary entry no.1 recorded in Civil Hospital; Rajkot at Exh.39, station diary entry no.3 recorded at “B” Division Police Station, Rajkot at Exh.26; station diary entry no.4 recorded at B” Division Police Station, Rajkot at Exh.28; FIR came to be filed by the PSI Shri A.Y. Patel at Exh/31 (recorded at about 1.15 a.m); Yadi sent by Shri A.Y. Patel to Executive Magistrate for recording dying declaration of the Sharifaben at Exh.22; panchnama of physical condition of the deceased at Exh.7; dying declaration recorded by Executive Magistrate at Exh.23 (recorded at 2.40 a.m on 12.6.1990); panchnama of place of incident at Exh.42; inquest panchnama at Exh.9 and postmortem report prepared by Dr. Amrutlal Parmar at Exh.10. That after closure of the evidence of the prosecution, further statement of the accused was recorded under Section 313 of the Code of Criminal Procedure wherein he denied the allegation made against him and it was submitted that a false case has been filed against him and he has been falsely implicated.

2.4. That after hearing the prosecution as well as defence and solely relying upon the telephonic massage sent by Govindbhai Motibhai ­in­charge PSO in Civil Hospital to Rajkot “B” Division Police Station which was alleged to have been recorded at 1.05 a.m early in the morning on 12.6.1990 that Sharifaben told him that she poured the kerosene on her and set her on fire and disbelieving the statement of Sharifaben recorded by Shri A.Y. Patel at about 1.15 a.m and disbelieving the case that at the time when Executive Magistrate recorded dying declaration at 2.40 a.m she was conscious and relying upon the deposition of the witnesses who turned hostile that at the time when she was brought to the hospital she was unconscious and therefore, at the time when Shri A.Y. Patel recorded the statement of Sharifaben which was treated as FIR at Exh.31 and when Executive Magistrate recorded the dying declaration she was unconscious, the learned Judge by impugned judgment and order has acquitted the accused for the offences punishable under Sections 302 and 504 of the Indian Penal Code.

2.5. Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal passed by the learned Sessions Court, the appellant herein ­State of Gujarat has preferred present Criminal Appeal under Section 378 of the Code of Criminal Procedure.

3.0 Ms. Shah, learned Additional Public Prosecution appearing on behalf of the appellant­State of Gujarat has vehemently submitted that the learned Judge has materially erred in acquitting the accused. It is submitted that the findings given by the learned Judge while acquitting the accused are perverse and contrary to the evidence on record and / or on misinterpretation of evidence on record. It is submitted that the learned Judge has not properly appreciated the evidence on record.

3.1. It is further submitted by Ms. Shah, learned Additional Public Prosecutor appearing on behalf of the appellant­State of Gujarat that the learned Judge has not properly appreciated the independent evidence on record while coming to the conclusion / findings that at the time when the Sharifaben made the statement before Shri A.Y. Patel (Exh.31) and when the Executive Magistrate recorded the dying declaration of Sharifaben at 2.40 a.m, Sharifaben was unconscious. It is submitted that as such in the medical treatment paper at Exh.19 it has been specifically mentioned by the concerned Doctor who gave the medical treatment in presence of Dr. Amrutlal Parmar 1.20 a.m to 2.55 a.m that Sharifaben was conscious. It is submitted that the said medical treatment paper has been admitted by the defence. It is further submitted that even when PSI Shri A.Y. Patel prepared the panchnama of body condition of Sharifaben at Exh.7 between 2.05 a.m to 2.35 a.m it is made out that at that time Sharifaben during panchnama identified her Blouse which was recovered as muddamal, which shows that Sharifaben was conscious between 2.05 a.m. to 2.35 a.m. It is further submitted that even in the Yadi sent by PSI Shri A.Y. Patel to the Executive Magistrate to come for recording dying declaration of Sharifaben which was received by the Executive Magistrate at 2.20 a.m (Exh.22) it has been specifically mentioned that Sharifaben is fully conscious. It is further submitted that even in the dying declaration recorded by the Executive Magistrate and even in the statement of the deceased Sharifaben it has been specifically mentioned that deceased Sharifaben was conscious and even the same was certified by Doctor that she is fully conscious while recording the dying declaration. It is therefore, submitted that learned Judge has materially erred in holding that at the time of recording the statement of Sharifaben at Exh.31 and at the time of recording the dying declaration by the Executive Magistrate, Sharifaben was conscious. It is submitted that the findings given by the learned Judge is perverse and contrary to the evidence on record. It is submitted that as such while giving the finding that at the time of recording the statement of Sharifaben by A.Y. Patel at 2.05 a.m (Exh.31) and at the time when the Executive Magistrate recorded the dying declaration of Sharifaben, she was unconscious, the learned Judge has considered and relied upon the deposition of the witnesses Jenuben Abdulabhai and Hanifaben Aarabbhai (Exhs. 35 and 36) who were declared hostile by the Court on the request of the prosecution. It is submitted that as per the settled proposition of law only that part of deposition of the hostile witnesses can be relied upon by the Court which supports the case of the prosecution. It is submitted that otherwise the purpose of declaring a particular witness as hostile by the prosecution would be frustrated.

3.2. It is further submitted by Ms. Shah, learned Additional Public Prosecutor appearing on behalf of the Appellant ­State of Gujarat that even otherwise learned Judge has materially erred in relying upon deposition of Govindbhai and / or his telephonic massage / information to the Rajkot “B” Division Police Station send at 1.05 a.m which is not supported/ corroborated by any other evidence. It is submitted that the learned Judge has materially erred in believing entry no.3 in the station diary which was on the basis of telephonic massage by Govindbhai and in not believing two dying declarations i.e. one before the PSI Shri A.Y.

Patel recorded at 2.05 a.m. at Exh.31 on the basis of which even entry no.4 of the police case diary was made which can be considered as oral dying declaration and dying declaration recorded by the Executive Magistrate recorded at 2.40 a.m. It is submitted that as such there are overwhelming evidences on record to show and suggest that at the time when Sharifaben gave statement before Shri A.Y. Patel, PSI, Rajkot “B” Division Police Station at 2.05 a.m (Exh.31) and the Executive Magistrate recorded the dying declaration at 2.40 a.m., Sharifaben was fully conscious, which have been ignored and / or not properly appreciated by the learned Judge.

3.3. It is further submitted by Ms. Shah, learned Additional Public Prosecutor appearing on behalf of the appellant­State of Gujarat that statement of Sharifaben recorded by PSI Shri A.Y. Patel at Exh. 2.05 a.m and dying declaration recorded by Executive Magistrate at Exh. 22 recorded at 2.40 a.m bares thumb impression of Sharifaben. It is submitted that from the inquest panchnama as well as panchnama of the physical condition and body of Sharifaben (Exh.7) it is proved that there was no bandages on the finger / thumb and therefore, she was in a position to put the thumb impression. It is submitted that even in the dying declaration and even Yadi sent to the Executive Magistrate it has been specifically mentioned that Sharifaben is fully conscious and same have not been challenged by the defencne. It is submitted that even in the medical treatment papers (Exh.19) it has been specifically mentioned that between 2.05 a.m to 2.35 a.m Sharifaben is fully conscious. It is submitted that Exh.19 has been admitted by the defence. It is submitted that even Dr. Amrutlal Parmar in his evidence has stated that all throughout when medical treatment was given to Sharifaben by Dr. Pandya he was present and that Sharifaben was fully conscious. It is submitted that in the cross examination nothing contrary has been brought / proved by the defence.

3.4. It is further submitted that the learned Judge has materially erred in relying upon deposition of the hostile witnesses Jenuben Abdulabhai, Hanifaben Aarabbhai and Batukgiri Mohangiri by observing that even relatives of the deceased have stated that when she was brought to hospital with burn injury she was unconscious. It is submitted that Govindbhai in his deposition which has been relied upon by the learned Judge and who sent the information / telephonic massage to the Rajkot “B” Division Police Station has stated that at about 1.15 a.m Sharifaben told him that she poured the kerosene on her and in the cross examination she specifically stated that when Sharifaben told him at 1.15 a.m she was fully conscious. It is submitted that on one hand learned Judge has believed the statement of the Govindbhai that Sharifaben told him at 1.15 a.m that she poured the kerosene on her, and on the other hand learned Judge has believed the deposition of the hostile witnesses that according to them Sharifaben was unconscious when she was brought to the hospital. It is submitted that therefore, there are contradictory depositions and the learned Judge has given contradictory findings to that and / or has relied upon the contradictory evidence of Govindbhai as well as hostile witnesses. It is submitted that as such as stated above learned Judge is not justified in relying upon the deposition of the hostile witnesses to come to the conclusion and / or while giving the finding that at the time of giving the statement before the PSI at Exh.31 and recording dying declaration by the Executive Magistrate she was unconscious, as the aforesaid witnesses have stated in the deposition that when she was brought to the hospital she was unconscious.

3.5. It is therefore, submitted that the findings given by the learned Judge are perverse and contrary to the evidence on record and the learned Judge has not properly appreciated the entire evidence on record in its proper perspective and as the order of acquittal is passed on such perverse finding, it is requested to allow the present appeal by quashing and setting aside the impugned judgment and order of acquittal and to convict the accused for the offences punishable under Sections 302 and 504 of the Indian Penal Code for which he was tried and to impose maximum punishment which can be awarded / imposed for the offences under Sections 302 and 504 of the Indian Penal Code.

4.0. Present Appeal is opposed by Shri K.S. Chandrani, learned advocate appearing on behalf of the original accused. It is submitted that as such the present appeal is under Section 378 of the Code of Criminal Procedure and therefore, if the view taken by the learned trial Court is plausible this Court may not interfere with the impugned judgment and order of acquittal. It is submitted that in the present case the learned trial Court has acquitted the accused on appreciation of evidence and by giving cogent reasons and findings and therefore, it is requested to dismiss the present appeal.

4.1. It is further submitted that as such death of deceased Sharifaben was not a homicidal death. It is submitted that looking to the deposition of the witnesses, PW No.1 Dr. Amrutlal Parmar who had accompanied Doctor who had given the treatment, in his chief he nowhere states that the death was homicidal. It is submitted that as such there were no injuries on the person of deceased other than one injury. Therefore, it is submitted that as such the prosecution has not proved that the death was homicidal. Relying upon some discussion at Exh.20, learned advocate for the original accused has tried to submit that looking to the injuries, it was not an homicidal death.

4.2. It is further submitted by Shri Chandrani, learned advocate for the original accused that as such learned trial Court has rightly given the finding that at the time when the deceased was brought to the hospital at 1.05 a.m, the deceased was unconscious. It is submitted that therefore, the learned Judge has rightly disbelieved the FIR lodged by PSI A.Y. Patel and even the dying declaration recorded by the Executive Magistrate ­Khimjibhai Govindbhai and / or endorsement on the dying declaration Exh.23 that the deceased was conscious throughout the dying declaration.

4.3. It is submitted that to come to the conclusion that the deceased was unconscious at the time when she was brought to the hospital i.e. at 1.05 a.m, the learned Judge has rightly considered the deposition of mother of Sharifaben PW No.6; Bhabhi of Sharifaben­ Hanifaben Aarabbhai PW No.7 and the deposition of neighbors Batukgiri Mohangiri PW No.8. It is submitted that therefore, the learned Judge has rightly believed the statement made by deceased Sharifaben at 1.05 a.m recorded by Govindbhai Motibhai PW No.5 – in ­charge PSO in Hospital, on the basis of which, entry no.3 was made in the station diary of the Rajkot “B” Division Police Station. It is submitted that it has been established and proved from the evidence of Govindbhai Motibhai in­charge PSO in Civil Hospital, Rajkot ­PW No.5 that Sharifaben told him at 1.05 a.m that she sustained burn injuries by setting her on fire by pouring the Kerosene on herself. It is submitted that said entry was made in the hospital register at the earliest and even entry no.3 was made in the station diary of the Rajkot “B” Division Police Station at the earliest, the learned Judge has rightly believed the same. It is submitted that as such Govindbhai Motibhai was police witness and therefore, the learned Judge has not committed any error and / or illegality in relying upon the deposition of Govindbhai Motibhai ­PW No.5.

4.4. It is submitted that considering the evidence on record, more particularly, deposition of Dr. Amrutlal Parmar PW No.1 as well as deposition of Khimjibhai Govindbhai ­Executive Magistrate PW No.2 and even deposition of Shri A.Y. Patel ­PW No.4 recording the FIR and dying declaration by Executive Magistrate seems doubtful. It is submitted that the condition of the patient was so poor that she would not be in a fit mental state to give any dying declaration and / or FIR. It is submitted that Dr. Pandya who has made endorsement on the dying declaration that Shrifaben is conscious throughout has not been examined by the prosecution and he has been dropped. It is further submitted that even otherwise consciousness is not only sufficient but patient should be in a fit state of mind to understand and answer the questions and to arrive at such a conclusion neither the Doctor nor the Executive Magistrate had made any efforts and hence there is nothing to show that the mental condition of the deceased was tested.

4.5. It is further submitted that Khimjibhai Govindbhai­ Executive Magistrate though in the examination in chief has stated that he received the yadi for recording the dying declaration at 2.20 a.m and he went to burns ward no.6, asked the nurse to call Doctor and relatives were asked to go out before recording the dying declaration, he took the endorsement of the Doctor on the dying declaration and started dying declaration in question and answer form that the dying declaration is in his handwriting, in the cross examination he has admitted that he has not made any entry in the inward register, who has given him yadi. He has also admitted in the cross examination that he has signed the dying declaration in Gujarati and he usually signs the documents in Gujarati, but sign in the yadi received is not in Gujarati and the sign in the dying declaration and sign in the police yadi are not same. It is further submitted that even there was no endorsement on the dying declaration that dying declaration was read over to the deceased. It is further submitted that even the said witness ­Executive Magistrate has admitted that there were no bandages on the right hand of the deceased and he does not remember that on which parts of the body bandages were applied. It is submitted that said witness also admitted that he has not taken thumb impression below the question and answer but has taken it on the margin side. It is submitted that as such on the carbon copy there are no thumb impression and the same were given to the police. It is submitted that therefore, dying declaration recorded by the Executive Magistrate creates doubt and it is doubtful and therefore, it cannot be relied upon to hold the accused guilty.

4.6. So far as statement of Sharifaben recorded by Shri A.Y. Patel, PSI and on the basis of which, Shri A.Y. Patel lodged the FIR, in which, according to prosecution Sharifaben specifically told that the accused has poured the kerosene on her and that she has been set fire by the accused is concerned, it is submitted that though according to Shri A.Y. Patel the statement of Sharifaben was recorded at 1.30 a.m, immediately he had not sent the information to the police station and even entry no.4 recording the FIR (Exh.31) is made at 4 a.m. It is submitted that the said witness has not prepared any case diary regarding the case. It is submitted that he had not made any noting pertaining to the investigation done by him anywhere but had done it so in weekly diary; that in his weekly diary he has not mentioned about the time of receiving yadi, time when he went to Hospital for investigation; time when he forwarded the complaint to police station and time when he drawn panchnama. It is submitted that according to the said witness­Shri A.Y. Patel he received the yadi at 1.15 a.m and went to the hospital but no such entry was made in station diary. It is submitted that even before recording the statement of Sharifaben, on the basis of which he lodged the FIR, he himself has not made any endorsement that patient is in a fit mental and physical condition to give complaint/ statement. It is submitted that the said witness has admitted that whole body of the patient is burned and was grieving. It is submitted that from the independent evidence/ deposition of said Shri A.Y. Patel, PSI, the prosecution has failed to prove beyond doubt the FIR lodged by Shri A.Y. Patel which was on the basis of the statement recorded by him. It is further submitted that as per the entry at Exh.27 the patient was brought to hospital by one Arab Abdulbhai but he has been dropped by the prosecution.

4.7. It is further submitted by Shri Chandrani, learned advocate for the original accused that as such though on the statement of the Sharifaben recorded by PSI Shri A.Y. Patel and even dying declaration recorded by the Executive Magistrate it bare the thumb impression of the Sharifaben, looking to the burn injuries and the bandages on the whole body she could not have put any thumb impression and therefore, the statement of Sharifaben which was registered as FIR and even dying declaration recorded by the Executive Magistrate are doubtful. Therefore, it is submitted that no reliance can be placed upon the complaint at Exh.31 as well as dying declaration and therefore, the learned Judge has rightly disbelieved the same and consequently the learned Judge has rightly acquitted the accused for the offences under Sections 302 r/w Section 504 of the Indian Penal Code.

4.8. It is further submitted by Shri Chandrani, learned advocate for the original accused that as such Govindbhai Motibhai was the first person to meet the deceased and he recorded the statement of the deceased on a blank paper and the said information was immediately sent to the concerned police station ­Rajkot “B” Division Police Station on the basis of which entry no.3 was made in the police diary. It is submitted that as such he could not take her thumb impression as her fingers were burnt and there were bandages. It is submitted that as per said Govindbhai Motibhai PW No.5 the deceased told her that he herself poured kerosene and herself tried to commit the suicide. It is submitted that the said statement which was recorded at 1.05 a.m, was immediately recorded in the entry in the hospital chawki at Exh.39. It is submitted that therefore, learned trial Court has rightly believed entry no.3 in Station diary at Exh.27 and entry in the list of the hospital Chawki which is at Exh.39 that the deceased Sharifaben had committed the suicide by pouring the kerosene herself.

4.9. It is further submitted by Shri Chandrani, learned advocate for the original accused that in the present case Sharifaben has committed the suicide has been established from the deposition of Govindbhai ­PSO Hospital Chawki and from the fact that there were no marks of violence found on the body of the Sharifaben and therefore it rules out of possibility of homicidal death; external appearance of the face shows that the face was burnt which would not be possible in case of homicidal death as per the jurisprudence and she was given certain injections and she was having 96% burn injuries and that no injuries were found on the person of the accused other then burn injuries and that no smell of kerosene oil was found from the clothes of the accused. It is submitted that if the FIR, which came to be recorded by the Investigating Officer (Exh.30) and the dying declaration recorded by the Executive Magistrate (Exh.23) are disbelieved, the prosecution has materially erred in proving that death of Sharifaben was homicidal death. Therefore, it is submitted that learned Judge has not committed any error and / or illegality in acquitting the accused for the offences under Sections 302 and 504 of the Indian Penal Code.

4.10. It is further submitted by Shri Chandrani, learned advocate for the original accused that after acquittal the appellant has got married to one Rashidaben and is also having one son named Sajid aged 22 years who is the son of the deceased who has also got married and is a father of the child and the respondent accused is having two daughters from Rashidaben named Reshma who is married and one another daughter named Razia aged 13 years. It is submitted that considering the above facts, it is requested to dismiss the present appeal and confirm the order of acquittal passed by the learned trial Court.

5.0. Heard the learned advocates for the respective parties at length and considered the entire judgment and order of acquittal passed by the learned trial Court acquitting the accused for the offences under Sections 302 and 504 of the Indian Penal Code and findings given by the learned trial Court while acquitting the accused as well as entire evidence from the record and proceedings received from the learned trial Court.

5.1. To prove the case against the accused, the prosecution examined Dr. Amrutlal Parmar­Medical Officer, Government Hospital, Rajkot who performed the postmortem on the dead body on 13.6.1990 and in whose presence Dr. Pandya gave medical treatment all throughout on 12.6.1990 and 13.6.1990 as PW No.1 at Exh.15. The prosecution also examined Khimjibhai Govindbhai ­Executive Magistrate who recorded the dying declaration of deceased Sharifaben (Exh.23) at 2.20 a.m as PW No.2 at Exh.21. The prosecution also examined the PW No. 3 Anandprasad Ramprasad at Exh.25­PSO Rajkot “B” Division Police Station. That the said Anandprasad Ramprasad had received the telephone Vardhi early in the morning at 1.15 a.m. on 12.6.1990 from hospital chawki Jamadar­Govindbhai who also made the entry no.3 in the police diary as well as entry no.4 in the station diary (Exhs. 27 and 28). The prosecution also examined PW No.4 Abdulla Yusubbhai Patel who at the relevant time was PSI, Rajkot “B” Division Police Staiton and who was handed over the investigation immediately after 1.15 a.m who visited the Civil Hospital, Rajkot immediately and recorded the complaint of Sharifaben at Exh.31, on the basis of which initially the FIR was registered against the accused for the offences under Sections 307 and 504 of the Indian Penal Code and who sent the yadi to the Executive Magistrate at 2.10 a.m to record the dying declaration. The prosecution also examined the police witness ­Govindbhai Motibhai ­in­charge PSO in hospital PW No.5 at Exh.34. The prosecution also examined the mother of Sharifaben ­Jenuben Abdullabhai PW No.6 at Exh.35;

Hanifaben Aarabbhai­Bhabhi of deceased Sharifaben PW No.7 at Exh.36 and one Batukgiri Mohangiri ­neighbor of original accused ­PW No.8 at Exh.37. All the aforesaid three PW Nos. 6 to 8 are declared hostile. The prosecution also examined one Dolatsinh Bhupatsinh ­Investigating Officer PW No.9 at Exh.41, who during the investigation recorded the statement of witnesses prepared the panchnama of scene of offence, arrested the accused.

5.2. The prosecution also led the documentary evidences. The charge against the accused for the offences under Sections 302 and 504 of the Indian Penal Code is at Exh.1. The list of mudammal and burn pieces of clothes, lungi with kerosene smell, cane of kerosen containing approximately half litter kerosene, match box etc at Exh.5. The prosecution placed on record the list of documentary evidence at Exh.6. It appears that the defence admitted the documents produced at mark 6/2, 6/4, 6/5, 6/8, 6/9, 6/11 and 6/19 and therefore, the said documents came to be exhibited with the consent of the defence. The defence admitted the panchnama of the Sharifaben about the body condition, which came to be exhibited at Exh.7; the defence admitted the arrest panchnama of the accused which was given Exh.no.8; the defence also admitted the inquest panchnama, which was given Exh. No. 9. The defence also admitted the medical certificate / medical treatment record and case paper of General Hospital, Rajkot with respect to the Sharifaben which was given Exh.No. 19. During the course of deposition of Dr. Amrutlal Parmar, postmortem note has been exhibited at Exh.17 and medical treatment paper has been exhibited at Exh.18. During the course of deposition of Khimjibhai Govindbhai ­Executive Magistrate as PW No. 2 dying declaration recorded by him has been exhibited at Exh.23 and yadi for recording the dying declaration sent by Shri A.Y. Patel­ PSI, Rajkot “B” Division Police Station has been exhibited at Exh.22. The carbon copy of the dying declaration of the Sharifaben has been produced at Exh.24. An extract of station diary entry nos. 3 and 4 of Rajkot “B” Division Police Station have been exhibited at Exhs. 26 and 28 and the extract of station diary of Rajkot “B” Division Police Station to handover the investigation to PSI A.Y. Patel has been exhibited at Exh.27. During the course of the deposition of PW No.4 ­PSI Shri A.Y. Patel the complaint of injured Sharifaben recorded by Shri A.Y. Patel has been exhibited at Exh.31. The extract of entry no.1, Rajkot City “B” Division Police Station recorded by Govindbhai Motibhai has been exhibited at Exh.39. The purshish submitted by Additional Public Prosecutor, Rajkot along with list of witnesses to be examined and witnesses to be dropped has exhibited at Exh.43.

5.3. Dr. Amrutlal Parmar ­PW No.1 ­Medical Officer, Government Hospital, Rajkot in his deposition has specifically stated that the treatment was given by Dr. Pandya to Sharifaben in his presence. From the case paper (Exh.19) which has been admitted by the defence it bares the endorsement of Dr. Pandya that between 2.40 a.m to 2.55 a.m i.e. when the Executive Magistrate recorded the dying declaration of Sharifaben, she was conscious. Even in the yadi sent by PSI A.Y. Patel sent to the Executive Magistrate for recording dying declaration (Exh.22) which has been received by the Executive Magistrate at 2.20 a.m, it has been specifically mentioned that Sharifaben is fully conscious. Even in the dying declaration recorded by the Executive Magistrate­ Khimjibhai Govindbhai which was recorded between 2.40 a.m to 2.55 a.m there is endorsement of Dr. Pandya that patient is conscious throughout the dying declaration. Even the said dying declaration also bares the right thumb impression of the Sharifaben. From the panchnama of Sharifaben about body condition which has been exhibited at Exh.7 with the consent of the defence, which was prepared by Shri A.Y. Patel, PSI at 2.35 a.m. It appears that Sharifaben herself identified her blouse and has stated that blouse is burnt. The said panchnama is recorded at 2.35 a.m. Thus, it has been proved that at 2.35 a.m at the time when the panchnama about body condition of the Sharifaben was recorded at Exh.7 not only she was conscious but she was capable of identifing her blouse. It is to be noted at this stage that panchnama at Exh.7 has been admitted by the defence. From the inquest panchnama produced at Exh.9, it appears that there was a ring on the first finger after thumb and that the bandages were upto hand and not palm. Thus, it has been proved that on the thumb there were no bandages and therefore, she was in a position to put the right thumb impression.

5.4. At this stage, it is required to be noted that while acquitting the accused for the offences under Sections 302 and 504 of the Indian Penal Code and giving the finding on disbelieving the FIR at Exh.31 recorded by PSI A.Y. Patel and disbelieving the dying declaration recorded by the Executive Magistrate (Exh.23) and by observing that when Sharifaben was brought to hospital at 1.05 a.m she was unconscious, the learned Judge has relied upon deposition of Jenuben Abdullabhai ­mother of the Sharifaben; Hanifaben Aarabbhai­ Bhabhi of the Sharifaben and Batukgiri Mohangiri ­neighbor of original accused who are as such declared as hostile witnesses and while observing that at the time when the statement of Sharifaben was recorded at Exh.31 and when the Executive Magistrate recorded the dying declaration between 2.40 a.m to 2.55 a.m, she could not have been conscious. However, it is required to be noted that even Govindbhai Motibhai whose evidence has been accepted by the learned Judge, has specifically admitted in the cross examination that when he recorded the statement of Sharifaben at 1.05 a.m she was very much conscious. If on one hand the learned Judge has believed the deposition of the Govindbhai PSO who gave information to the Rajkot “B” Division Police Station at 1.15 a.m and who recorded the entry in the hospital (Exh.39) that the Sharifaben told him that she has committed the suicide by pouring the kerosene on herself, in that case to rely upon the deposition of the hostile witnesses Jenuben Abdullabhai ­mother of the Sharifaben, Hanifaben Aarabbhai­ Bhabhi of the Sharifaben and Batukgiri Mohangiri ­neighbor of original accused and giving finding that at the time when she was brought to the hospital she was unconscious, are self contradictory evidences and the self contradictory findings given by the learned trial Court.

5.5. As stated above, while dealing with and giving finding that at the time when Sharifaben was brought to the hospital she was unconscious, the learned Judge has relied upon the deposition of the hostile witnesses Jenuben Abdullabhai ­mother of the Sharifaben; Hanifaben Aarabbhai­ Bhabhi of the Sharifaben and Batukgiri Mohangiri ­neighbor of original accused. The learned Judge has materially erred in relying upon some portion of the deposition of the hostile witnesses and while coming to the conclusion that at the time when Sharifaben was brought to the hospital, she was unconscious. As per the cardinal principle of law, the Court can rely upon on that portion of the deposition of the hostile witness/ witnesses which helps the prosecution only. If the Court is to rely upon that portion of the deposition of the hostile witnesses which goes against the case of the prosecution, it will frustrate the purpose of declaring a particular witness hostile. A witness would be declared hostile witness at the instance of the prosecution if and when it is found that the said witness does not support the case of the prosecution. Under the circumstances, the learned Judge has materially erred in relying upon the deposition of the hostile witnesses Jenuben Abdullabhai ­mother of the Sharifaben; Hanifaben Aarabbhai­ Bhabhi of the Sharifaben and Batukgiri Mohangiri ­neighbor of original accused, which do not support the case of the prosecution. Under the circumstances, findings given by the learned trial Court relying upon the deposition of the hostile witnesses Jenuben Abdullabhai ­mother of the Sharifaben; Hanifaben Aarabbhai­ Bhabhi of the Sharifaben and Batukgiri Mohangiri ­neighbor of original accused that at the time when Sharifaben was brought to the hospital, she was unconscious, is perverse finding. It is not only perverse finding but even it is contrary to the evidence on record as discussed hereinabove. There is evidence on record that at the time when PSI sent yadi to the Executive Magistrate at 2.10 a.m and when Executive Magistrate recorded the dying declaration between 2.40 a.m to 2.55 a.m, patient was conscious. As stated above, it has been established from the panchnama of the body condition of the Sharifaben Exh.7 which was recorded at 2.35 a.m that she was not only conscious but she was in position to identify her own blouse which shows the physical and mental condition of Sharifaben even at 2.35 a.m. Under the circumstances, the learned Judge has materially erred in acquitting the accused by giving finding that Sharifaben was unconscious at the time when she was brought to the hospital (at 1.05 a.m) and that she could not have been conscious at the time when PSI A.Y. Patel recorded the complaint of Sharifaben at Exh.31 and when Executive Magistrate recorded the dying declaration at Exh.23 (between 2.35 a.m to 2.55 a.m) and consequently disbelieving the FIR at Exh.31 and dying declaration at Exh.23.

5.6. Learned advocate for the original accused has tried to create a doubt about the FIR/ complaint of Sharifaben recorded by PSI Shri A.Y. Patel at Exh.31 and dying declaration recorded by Executive Magistrate by submitting that there is no entry in the station diary that the investigation was handed over to Shri A.Y. Patel, PSI and that though Shri A.Y. Patel, PSI recorded the statement of Sharifaben (Exh.31) at 1.30 a.m and entry no.4 in the station diary recorded at 4 a.m and that in the complaint at Exh.31 no time is mentioned and by further submitting that in the dying declaration and Yadi received by Executive Magistrate from PSI Shri A.Y. Patel, signature differs i.e. signature of the Executive Magistrate in dying declaration is in Gujarati and in the Yadi received by him from Shri A.Y. Patel, PSI to record the dying declaration it bares the signature of Executive Magistrate in English. However, it is required to be noted that entry no.4 in the Station diary which was recorded at 4 a.m. has been proved from the evidence of Anandiprasad Ramprasad, PSO, Rajkot “B” Division Police Station. It is also proved from his deposition that immediately after receiving the information at 1.15 a.m and after entry no.3 was made in the station diary, Shri A.Y. Patel, PSI was handed over the investigation. The panchnama recorded by Shri A.Y. Patel, PSI also proves that he was handed over the investigation, which is after 1.15 a.m. The complaint recorded by Shri A.Y. Patel, PSI recording the statement of Sharifaben bares right hand thumb impression of Sharifaben. What is stated in the complaint/ statement of Sharifaben recorded by Shri A.Y. Patel, PSI and what is stated by Sharifaben in the dying declaration (Exh.23) recorded by Executive Magistrate are supporting each other and are the same. As such the statement of Sharifaben recorded by Shri A.Y. Patel, PSI recorded as complaint at Exh.31 can be said to be oral dying declaration and there is another dying declaration recorded by Executive Magistrate at Exh.23. Thus, there are two dying declarations on record. From the aforesaid, the learned Judge has materially erred in disbelieving the statement of Sharifaben recorded by Shri A.Y. Patel, PSI ( Exh.31) and the dying declaration recorded by the Executive Magistrate (Exh.23). While disbelieving the aforesaid, learned Judge has misread and / or misinterpreted entire evidence on record and has given perverse findings, which cannot be sustained. It is to be noted at this stage that on the basis of the statement of Sharifaben recorded by Shri A.Y. Patel, PSI ( Exh.31) and after completing other formalities the PSI went to the Rajkot “B” Division Police Station and on the basis of the said statement, FIR came to be lodged against the accused at 4 a.m. for the offences under Sections 307 and 504 of the Indian Penal Code and therefore, delay between recording the statement and entry in the station diary has been explained.

5.7. From the impugned judgment and order of acquittal passed by the learned trial Judge, it appears that the learned Judge has heavily relied upon the deposition of Govindbhai Motibhai, PSO, Hospital Police Chawki and the entry made by him in the hospital register (Exh.39) and telephone Vardhi given by him to the Rajkot “B” Division Police Station on the basis of which entry no. 3 was made in the station diary that at 1.15 a.m Sharifaben told him that she has committed the suicide by pouring the kerosene herself and has disbelieved the dying declaration of Sharifaben recorded by Shri A.Y. Patel, PSI ( Exh.31) and dying declaration recorded by Executive Magistrate (Exh.23) recorded between 2.40 a.m to 2.55 a.m, in which, it has been specifically mentioned that Sharifaben has specifically given the statement that the accused had poured the kerosene on her and set her on fire. It is to be noted that in the dying declaration Sharifaben has specifically stated that accused was telling after setting her fire that he will see to it that nobody will believe her case and he will tell to other persons that she has committed the suicide by pouring kerosene. At this stage, it is required to be noted that when a pointed question was asked to her whether there was any harassment by her mother in law and sister in law, she has stated that sometime sister in law (sister of the accused) was taunting her. Thus, there is no reason to doubt the dying declaration recorded by Executive Magistrate. On the other hand, so called statement of Sharifaben before Govindbhai Motibhai is not supported/ corroborated by any other evidence either documentary or oral. Even according to said Govindbhai Motibhai statement of Sharifaben which was made before him at 1.15 a.m on the basis of which entry in the hospital register was made at Exh.39 and on basis of the telephonic information to Rajkot “B” Division Police Station, entry no.3 in the station diary was made, was recorded on the blank paper but he has destroyed the same. On the other hand, as stated above, there are two dying declarations one oral before the Shri A.Y. Patel, PSI and another recorded by the Executive Magistrate. Considering the above, the learned Judge has materially erred in relying upon the deposition of Govindbhai Motibhai and entry in the hospital register (Exh.39) and entry no.3 in the station diary (Exh.27) which was on the basis of information given by Govindbhai Motibhai which is not supported/ corroborated by any such evidence either documentary and / or oral. Under the circumstances, learned Judge has materially erred in disbelieving the complaint/ statement of Sharifaben recorded by Shri A.Y. Patel, PSI and dying declaration recorded by Executive Magistrate ­Khimjibhai Govindbhai, in which deceased Sharifaben has specifically stated that the accused has poured the kerosene on her and set her on fire. Once the statement of Sharifaben recorded by Shri A.Y. Patel, PSI ( Exh.31) and dying declaration recorded by Executive Magistrate­Khimjibhai Govindbhai (Exh.23) are held to be proved and considering the cause of death mentioned in the postmortem report, it is proved that death of Sharifaben was homicidal death. Considering the aforesaid facts and circumstances of the case and on re­ appreciation of the entire evidence, it appears to the Court that learned Judge has materially erred in acquitting the accused for the offences, for which he was tried for the offences under Sections 302 and 504 of the Indian Penal Code.

5.8. Now, so far as submission on behalf of accused not to interfer with the impugned judgment and order of acquittal passed by the learned trial Court in exercise of powers under Section 378 of the Code of Criminal Procedure is concerned, this Court is conscious of power of the High Court under Section 378 of the Code of Criminal Procedure while dealing with appeal challenging the order of acquittal passed by the learned trial Court.

As per the law laid down by the Hon’ble Supreme Court in catena of decisions, if the order of acquittal passed by the learned trial Court suffers from error as to law and on appreciation of evidence both and the findings given by the learned trial Court are perverse, the learned Appellate Court in exercise of powers under Section 378 of the Code of Criminal Procedure can interfere with the order of acquittal passed by the learned trial Court and pass an order of conviction. It is found by the learned Appellate Court that the learned trial Court has disbelieved the reliable and trustworthy testimony of the witnesses, which proves the prosecution case beyond reasonable doubt and has believed the deposition of hostile witnesses though ought not to have been believed and the acquittal is based upon the same, the learned Appellate Court can in exercise of powers under Section 378 of the Code of Criminal Procedure interfere with the order of acquittal passed by the learned trial Court and reverse the same to conviction. In the present case as stated above, the learned trial Court has materially erred in disbelieving two dying declarations (oral before the PSI Shri A.Y. Patel at Exh.31 and another before Executive Magistrate at Exh.23) and has materially erred in relying upon the deposition of hostile witnesses, more particularly, that part of the deposition of the hostile witnesses which did not support the case of the prosecution. Under the circumstances, this Court is of the firm opinion that this is a fit case to interfere with the impugned judgment and order of acquittal passed by the learned trial Court.

6.0 In view of the above and for the reasons stated above, the impugned judgment and order of acquittal passed by the learned Additional Sessions Judge, Rajkot dated 21.10.1991 passed in Sessions Case No. 55 of 1990 acquitting the accused for the offences under Section 302 and 504 of the Indian Penal Code cannot be sustained and same deserves to be quashed and set aside.

7.0 This Court has heard the the learned advocate for the accused on sentence and as this Court proposes to impose minimum sentence of life while convicting the accused for the offences under Sections 302 and 504 of the Indian Penal Code, this Court is of the opinion that the accused is not required to be heard on sentence when minimum sentence provided under the Indian Penal Code is to be imposed.

8.0 In view of the above and for the reasons stated above, present appeal succeeds. The impugned judgment and order of acquittal passed by the learned Additional Sessions Judge, Rajkot dated 21.10.1991 passed in Sessions Case No. 55 of 1990 is hereby quashed and set aside and the respondent herein­original accused is held guilty for the offences under Sections 302 and 504 of the Indian Penal Code for the death of Sharifaben ­his wife and for the offence under Section 302 of the Indian Penal Code the respondent accused is directed to undergo sentence of life imprisonment with fine of Rs.10,000/­ and in default to pay fine to undergo further sentence of one year R.I and is also sentenced to undergo two years R.I with fine of Rs.5000/­ and in default to pay fine to undergo further sentence of six months S.I for the offence under Section 504 of the Indian Penal Code. Both the aforesaid sentences to under go concurrently. The bail bond of the respondent accused is hereby cancelled and the respondent accused is directed to surrender to undergo sentence. At this stage, Shri Chandrani, learned advocate for the original accused has requested to grant reasonable time to the accused to surrender. In the facts and circumstances of the case, time to surrender to the accused is granted upto 28th February 2013. Present appeal is allowed.

sd/­ (M.R.SHAH, J.) Kaushik sd/­ (S.H.VORA, J.)