Gujarat High Court
State Of Gujarat vs Anopbhai Punambhai Bhoi on 25 August, 2021
Bench: Rajendra M. Sareen
R/CR.MA/5289/2020 ORDER DATED: 25/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5289 of 2020
In
R/CRIMINAL APPEAL NO. 448 of 2020
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STATE OF GUJARAT
Versus
ANOPBHAI PUNAMBHAI BHOI
===========================================
Appearance:
MS. JIRGA JHAVERI, APP (2) for the Applicant
HCLS COMMITTEE(4998) for the Respondent Nos. 1,2,3,4
MR NILESH I JANI(3558) for the Respondent Nos. 1,2,3,4
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 25/08/2021
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. This is an application filed under Section 378(1)(3) of the
Criminal Procedure Code, seeking leave to appeal by the original
complainant, who is aggrieved by the judgment and order of
acquittal dated 5th August, 2019 passed by the learned Additional
Sessions Judge, Kheda at Nadiad in Sessions Case no.44 of 2017.
The charges levelled against the opponent was for the offence
punishable under Sections 302, 452, 504 and 114 of the Indian
Penal Code. There were more than one dying declarations. The
First Information Report itself was in the form of the dying
declaration.
2. The case of the prosecution was that on 23rd November, 2016
at around 1:30 while she was all alone at home, and when the
R/CR.MA/5289/2020 ORDER DATED: 25/08/2021
husband and father-in-law had barely returned attending to the
Court, the opponents - Anopbhai and his brother Jayeshbhai both
had gone to her place hurling the abuses that she was not
compromising in the matter and she was dragged holding her hair
and Jayendrabhai had poured the petrol like liquid on her and
Anopbhai had set her ablaze. Hearing hue and cry, her sister
Varsha and her husband rushed to the place, who attempted to
save her.
3. The I-CR. No.81 of 2016 was registered at Sevaliya Police
Station for the offences punishable under Sections 307, 452, 504
and 114 of the Indian Penal Code. This eventually resulted into the
Sessions Case no.44 of 2017. Due to the death of the injured,
Section-302 of the IPC was added.
4. We have heard Ms. Jhaveri, learned APP, who has urged that
because of multiple dying declarations and also on the ground of
the absence of the endorsement of the Medical Officer of the
injured being conscious, has disbelieved the dying declaration. She
has also submitted that injured had survived for the period of 10
days and eventually had succumbed to the injuries on 2 nd
December, 2016. She has further urged that the Court has
overlooked the decision of the Apex Court in case of Laxman Vs.
State of Maharashtra, (2002) 6 SCC, 710 which has been reiterated
by the Apex Court in case of Jagbir Singh Vs. State (NCT of Delhi)
reported in (2019) 8 SCC 779 as also in the case of Dayaram and
Anr. Vs. State of M.P. (2020) 13 SCC 382.
5. This is being strongly resisted by Mr. Nilesh Jani, learned
advocate for the respondents appearing through Legal Aid.
According to him, the trial Court has rightly acquitted the
R/CR.MA/5289/2020 ORDER DATED: 25/08/2021
opponents as the aspect of consciousness would play the material
role particularly when the extent of injury was quite grave. She in
her multiple dying declarations had given the divergent versions
and it was not found convincing by the Court concerned.
6. On hearing both the sides and noticing prima facie basic law
in the reasoning while appreciating the dying declaration and more
particularly of overlooking of the settled law of Laxman Vs. State of
Maharashtra (supra) this Court is inclined to allow the present
application.
7. This application is allowed.
(SONIA GOKANI, J.)
(RAJENDRA M. SAREEN, J.)
AMAR RATHOD...
