(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 The State has filed the present Appeal challenging the judgment and order dated 11.6.1992 passed in Sessions Case No. 245 of 1988, by the learned Additional Sessions Judge, Nadiad, by which the respondent–accused was acquitted from the charges for offence under Section 302 of the Indian Penal Code.
2 The case of the prosecution before the Trial Court was that the First Information Report was lodged by one Jasiben, daughter of Joitaram, with Kapadwanj Police Station, alleging against the present respondent that her brother-in-law-Jenabhai was attacked by the accused with `dhariya' a deadly weapon on 25.6 1988 at about 7.30 in the morning in village Chhapra of Mahemdabad Taluka. After the investigation was over, the Police Officer submitted a charge sheet in the court of learned Judicial Magistrate, First Class at Kapadwanj, who, in turn, committed the same in the Court of Sessions, Kheda at Nadiad and the aforesaid Session Case came to be registered. Charge was framed against the accused at Exhibit-4 to which he pleaded not guilty and claimed to be tried.
3 The learned Additional Sessions Judge, Nadiad, proceeded with the trial. The prosecution examined as many as 10 witnesses including three eye witness and two Doctors who treated the deceased. After considering the evidence put forward by the prosecution, the Trial Court came to the conclusion that looking to the facts and circumstances of the case, the testimony of the eye witnesses are not believable and trustworthy and, therefor, acquitted the accused by judgment and order dated 11.6.1992 and, hence, the aforesaid appeal by the State.
4 The respondent–accused has been served with the notice who have chosen not to contest this Appeal.
5 We have gone through the Record and Proceedings of the Trial Court. The incident in question took place on 25.6.1988 at village Chhapra of Taluka–Mahemadabad. Immediately after the incident, the injured was shifted to General Hospital at Mahemadabad and on the same day he was referred to V.S. Hospital at Ahmedabad. He was admitted in the V.S. Hospital on 25.6.1988 and was operated on 29.6.1988. He remained in the hospital till 16.8.1988 and thereafter the Doctors decided to transfer the injured in the Paraplegia Centre at the Civil Hospital, Ahmedabad. However, it has come on record that instead of admitting the injured in the Paraplegia Centre, the relatives took the injured at their village. He was kept at this residence till he was admitted in a private hospital at Nadiad on 7.9.1988. The injured was treated there by one Dr. Shantiswarup Shastri, who has been examined as PW-7, but, ultimately, the injured succumbed to injuries on 17.9.1988.
6 It appears from the deposition of PW-9 Vinodbhai Toliya, PSI, Mahemadabad Police Station, examined at Exhibit-50 that he has investigated the offence upto 11.9.1988 and recorded the statement of injured Jenabhai Ukabhai on 19.8.1988 when the injured was at his residence at village Chhapra. It also transpires from his deposition that when the injured Jenabhai Ukabhai was in the private Hospital at Nadiad, his another statement was recorded, wherein he has narrated the incident and has categorically stated that the accused had attacked him on 25.6.1988 with deadly weapon like dharia. It is an admitted position that since the injured has not survived, the said statement can be treated as dying declaration under Section 32 of the Evidence Act.
7 We have heard Mr. R.C. Kodekar, learned APP, for the appellant-State. He mainly assailed the judgment of the Trial Court on the ground that looking to depositions of the witnesses which are natural witnesses, the learned Trial Court ought to have believed them. He further submitted that the learned Trial Court ought to have believed the statement made by the deceased before the police officer and looking to the seriousness of crime committed by the accused, the learned Trial Court ought to have convicted the accused for the offence of murder.
8 We are unable to accept the submissions made by learned APP Mr. Kodekar since the method and approach of the Police Officer, who investigated the case till recording of this dying declaration, is found doubtful by us. PW-9 Vinodbhai Toliya, PSI, Mahemadabad Police Station, was in-charge of this offence upto 11.9.1988 but it appears that when the injured was shifted to his house on 16.8.1988, he did not record his dying declaration. The learned Trial Judge is right in observing that the Investigating Officer did not take any care to obtain a certificate from the Doctor about the condition of the injured as to whether the injured is in fit statement of mind to speak anything. Now considering the cross- examination of PW-1 Jasiben, she has categorically stated in para- 20 of her deposition that when the injured was brought to village on 16.8.1988, he was unconscious and was not in a position to speak anything. She has also stated that whenever she visited the deceased, he was found unconscious and was not able to speak anything.
9 It is also pertinent to note that when the second dying declaration which was recorded on 9.9.1988, the Police Officer has not obtained any certificate from the Doctor in whose private hospital the injured was under treatment, about the condition of the patient as to whether the patient was in fit of state of mind to speak anything. With regard to the injuries sustained by the deceased, the prosecution examined PW-6 Dr. Pradip Seju, at Exhibit-34, who was on duty on 25.6.1988 when the deceased was admitted in the hospital. He described the injuries which were found on the person of the deceased. It appears from his deposition that this witness, who has given treatment to the injured at V.S. Hospital, from 25.6.1988 to 16.8.1988, did not inform the Executive Magistrate about recording of dying declaration of the injured. It also appears from the record that the relatives of the deceased instead of admitting the patient in Paraplegia Centre in the Civil Hospital, Ahmedabad, taken him to the village without informing either Police Officer or Doctors at V.S. Hospital. When the deceased was admitted in a private hospital at Nadiad, he was found in a serious condition and it appears from the deposition of PW-7 Dr. Shantiswarup that the patient was unable to speak properly and he could not understand whatever spoken by the injured. The injured succumbed to the injuries on 17.9.1988. Neither the Doctor nor the relatives informed the police about the death of the patient. Since the dead body was disposed of by the relatives without informing the police, no postmortem was carried out and, therefore the postmortem notes are not on record. At this stage, it is pertinent to note that, the prosecution has submitted an application under Section-319 of the Criminal Procedure Code at Exhibit-40 against Dr. Shantiswarup, which was rejected by the Trial Court and became final. As such, there is total lack of evidence on cause of death of the deceased.
10. The fact emerging from the record is that, though, the injured survived for about three months, the investigating agency has not taken care to investigate the case in proper manner and on the contrary recording statement of the injured in the form of dying declaration creates doubts in the mind of the Court. Dr. Pradip Seju has categorically stated that the injury can be caused by hard and blunt substance and not by a sharp edged weapon. PW-1 Jasiben stated that the weapon used by the accused is a dharia which also creates doubts in the minds of the Court.
11 In our view, the learned Trial Court has taken all the above aspects into consideration while acquitting the accused from the charges leveled against him. We are also of the view that the judgment of the Trial Court acquitting the accused from the charges is well reasoned and we also agree with the reasonings given by the Trial Court. The appeal is dismissed accordingly, Bail bond, if any shall stand cancelled.
(A.L. DAVE, J.) (A.J. DESAI, J.) pnnair