Gujarat High Court

State Of Gujarat vs Laxmanbhai @ Lakhabhai ... on 19 July, 2022

Bench: Ashokkumar C. Joshi

     R/CR.A/575/2008                         JUDGMENT DATED: 19/07/2022




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CRIMINAL APPEAL NO. 575 of 2008
                          With
     R/CRIMINAL REVISION APPLICATION NO. 450 of 2007

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
=======================================
   Whether Reporters of Local Papers may be
 1                                          YES
   allowed to see the judgment ?

 2 To be referred to the Reporter or not ?                          YES

      Whether their Lordships wish to see the fair copy
 3                                                                   NO
      of the judgment ?
     Whether this case involves a substantial question
 4 of law as to the interpretation of the Constitution NO
     of India or any order made thereunder ?
=======================================
                        STATE OF GUJARAT
                              Versus
  LAXMANBHAI @ LAKHABHAI PRATAPBHAI THAKOR & 2 other(s)
=======================================
Appearance:
MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
RICHA SHAH(7541) for the Opponent(s)/Respondent(s) No. 1,2,3
=======================================

 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                        Date : 19/07/2022
                        ORAL JUDGMENT

Introduction:

1. Much ink has been flown on evaluation and appreciation of

evidence on a written dying declaration, but, a very few

occasions have arisen, wherein the Court has an opportunity to

examine and assess the evidence adduced by the prosecution on

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oral dying declaration. Present is one such case.

1.1 The principle of "Leterm Mortem" which means, "words

said before death", in a legal term it is called as 'Dying

Declaration'. The word "Dying Declaration" means a statement,

written or verbal, of relevant facts made by a person, who is

dead. It is the declaration of a person who had died explaining

the circumstances of his death. This is based on the maxim

'Nemo Mariturus Presumuntur Mentri" i.e. a man will not

meet his maker with lie on his mouth. Our Indian law recognizes

the fact that 'a dying man seldom lies' or 'truth sits upon

the lips of a dying man.' It is an exception to the principle of

excluding hearsay evidence rule. Here the person (victim) is the

only eye-witness to the crime, and exclusion of his/her statement

would tend to defeat the ends of justice. The respective section

does not lay down any standards or measures which need to be

followed or considered by the judicial authority while delivering

the judgment. This gives wider discretion to the judges, who

again, based on the facts, circumstances and personal opinion

exposing it to the rule of subjectivity. A dying declaration is

considered to be credible and trustworthy based upon the

general belief that most people who know that they are about to

die, do not lie.

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1.2 Like churning out the nectar, the role of judiciary is

alike, viz. churning out the truth. Keeping all such aspects in

mind, let us discuss and evaluate the merits of the case on hand.

Prelude:

2. The present appeal under Section 378(1)(3) of the Code of

Criminal Procedure, 1973 (herein after referred to as "the Code")

is filed by the appellant - State of Gujarat and Criminal Revision

Application No. 450 of 2007 is filed by the applicant - original

complainant under Section 401 of the Code, challenging the

judgment and order dated 10.07.2007, passed in Sessions Case

No. 29 of 2004, by the learned Presiding Officer and Additional

Sessions Judge, Fast Track Court No. 1, Dhrangadhra, recording

the acquittal of the respondents - original accused.

Factual matrix:

3. Marriage of deceased Ramilaben, the sister of original

complainant - Dhanabhai Chaturbhai was solemnized with

accused No.1 - Laxmanji @ Lakhabhai Pratapbhai Thakor,

resident of Vadgam of Dasada Taluka, prior to about three years

of the incident in question. Out of the wedlock, they have one

child named Rahul, aged one and a half years at the relevant

time. That after the marriage, victim deceased Ramilaben was

residing in her matrimonial house in a joint family at Dasada.

That, on 19.08.2004 at about 5:30 p.m., the complainant got the

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telephonic message from accused No. 2 - Pratap Valabhai

Thakor, the father-in-law of the deceased, that his younger sister

was burnt and asked him to come immediately and they were

taking her to the hospital and, accordingly, the complainant left

for Vadgam and when he reached at Shankheshwar, he saw

father-in-law and the uncle-in-law going in a white colour car, and

hence, the complainant stopped the said car and found his sister

lying in the middle seat in a burnt condition and on inquiry made

by the complainant, her sister informed him that her husband,

mother-in-law and the father-in-law demanded and asked her to

bring Rs.10,000/- and pressurized her to bring money from her

parental home, and thereby caused physical and mental

harassment to her. They harassed her by pointing out mistakes

in household works. That, earlier she had brought Rs.5,000/- and

hence, on being instigated by her in-laws, her husband got

infuriated and beat her up, and hence, in frustration, she went to

her home and sat her ablaze by pouring kerosene on account of

persistent harassment and torture by the respondents - accused

persons. Thus, the Respondents committed offence in question

for which, FIR came to be registered against them for the

offences punishable under Sections 306, 498-A and 114 of the

Indian Penal Code, 1860 (hereinafter referred to as "the IPC") and

Sections 3 and 7 of the Dowry Prohibition Act.

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3.1 On the basis of the complaint, investigation came into

motion and, after investigation, as there was sufficient evidence

against the respondents - original accused persons, Charge sheet

was filed against them before the learned Judicial Magistrate First

Class, Patdi. Since the offences were exclusively triable by the

Court of Sessions, the case was committed to the Court of

Sessions under the provisions of Section 209 of the Code, where,

it was registered as Special Case No. 29 of 2004. The learned

Sessions Court framed the charge against the accused for the

offences punishable under Sections 306, 498A and Section 114 of

the IPC and Sections 3 and 7 of the Dowry Prohibition Act. The

accused pleaded not guilty to the charge and hence, the trial

commenced. In support, the prosecution has testified 11

witnesses and produced 10 documentary evidence. On

conclusion of trial, the learned Sessions Judge acquitted the

accused persons from the charges levelled against them.

Grieved by the said order of acquittal, present appeal at the

behest of the State and the revision application at the behest of

the original complainant have been filed.

Submissions:

4. Heard, Ms. Jirga Jhaveri, learned Additional Public

Prosecutor for the appellant - State, learned advocate Mr. H. N.

Brahmbhatt appearing on behalf of the applicant - original

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complainant and learned advocate Ms. Richa Shah appearing on

behalf of the respondents - original accused.

4.1 Learned APP Mr. Jirga Jhaveri has contended that the

learned Sessions Judge has committed error in appreciation of

evidence of PW-4 Dhanabhai Chaturbhai, Exh. 41, who is the

original complainant and brother of the deceased victim, who has

fully supported the case of the prosecution as narrated by him in

his complaint, Exh. 42. In his evidence, he has stated that on

19.08.2004 at about 5:30 p.m., when he was present at his

home, at that time, he received a telephonic call from the father-

in-law of the deceased that his younger sister Ramilaben was

burnt and he was asked to come immediately, and thereafter ,

when he was going towards Vadgam village, he saw the father-in-

law of the deceased and his family in a white coloured motor car,

and therefore, he stopped them and found that his younger sister

was lying in burnt condition in the motor car. When he asked her

about the same, deceased informed him that her husband,

father-in-law and the mother-in-law demanded Rs.10,000/- and

asked her to bring from her parental home and when denied,

they caused physical and mental harassment to her, and because

of that, out of frustration, by pouring kerosene on her body, she

sat herself ablaze. It is contended that only because the witness

examined by the prosecution is the brother of the deceased, the

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learned Judge ought not to have disbelieved and discarded the

evidence of this witness.

4.2 The prosecution has testified PW-6 Sadhu Dineshbhai

Khemdas at Exh. 46, who has fully supported the case of the

prosecution and is an independent witness and accordingly, in

the submission of learned Additional Public Prosecutor, the

learned Sessions Judge has committed an error in arriving at the

acquittal of the accused persons. It is further contended that the

learned Sessions Judge has failed to appreciate the fact that the

incident had taken place at the matrimonial home of the

deceased i.e. at the place of the accused and there are clear

findings by the learned Sessions Judge that it is not an accidental

death but it is a suicidal death, and therefore, in such facts and

circumstances of the case, the learned Sessions Judge ought to

have examined as to how and why the death of the deceased

took place and as to what has prompted her to commit the

suicide. She submitted that no explanation is coming forth from

the defence about the same. She submitted that accordingly,

when it is not the case of accidental death and it is suicidal one

and when there is specific evidence of the witnesses stating that

the accused persons caused harassment to the deceased, the

learned Sessions Judge ought to have presumed that it is case of

suicidal death of a married woman as provided under Section

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113A of the Indian Evidence Act (Evidence Act). Further, in the

instant case, there is no dispute that incident took place at the

place of accused persons. In such facts and circumstances, the

present case falls under Section 113A of the Evidence Act and the

husband and relatives of her husband subjected her to cruelty.

4.3 The learned Additional Public Prosecutor then submitted

that the learned Sessions Judge ought to have presumed on

considering all the material evidence and circumstances of the

case that such a suicide has been abetted by the husband of the

deceased and other accused persons. Therefore, the impugned

judgment and order passed by the learned Sessions Judge, being

even otherwise, perverse, illegal, invalid and improper, deserves

to be quashed and set aside.

4.4 The learned Additional Public Prosecutor further contended

that as per the settled law, minor omissions and contradictions in

the prosecution evidence may not be fatal to the prosecution

case. Upon all such grounds, she has prayed to quash and set

aside the order of acquittal, impugned herein, passed by the

learned Sessions Judge as the same is improper, perverse and

bad in law.

4.5 Learned APP has also taken this Court through the

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depositions of PW-1 Nodhanji Keshaji at Exh. 31, PW-2 Jagabhai

Pathanbhai Chavda at Exh. 33, PW-3 Amubhai Bhavsangbhai at

Exh. 35, PW-4 Dhanabhai Chaturbhai at Exh. 41, PW-5 Muliben

Chaturbhai at Exh. 45, PW-6 Sadhu Dineshbhai Khemdas at Exh.

46, PW-7 Kanujibhai Chaturbhai at Exh. 47, PW-8 Dr. Jayeshbhai

Ranchodbhai Rathod at Exh. 49, PW-9 Vanrajsinh Juvansinh Gohel

at Exh. 53, PW-10 Ghanshyamsinh Mansinh Zala at Exh. 54 and

testimony of PW-11 Manjibhai Muljibhai Garva at Exh. 56. She

has also placed reliance on the documentary evidence produced

on record, which are as many as 10 in number.

4.6 Further, taking this Court to the impugned judgment and

order passed by the learned Sessions Judge, the learned

Additional Public Prosecutor contended that the defence has not

much challenged the dying declaration which is sufficient enough

to bring home the charge against the accused. She also pointed

out that there are mainly two main witnesses, one is PW-7

Kanujibhai Chaturbhai, the brother of the deceased, who is

examined at Exh. 47 and another is PW-6 Sadhu Dineshbhai, who

is examined at Exh. 46 who is an independent witness who had

heard the victim narrating that she was subjected to cruelty, and

was given physical and mental torture and harassment making

demand of Rs.10,000/- and also, on the day of occurrence, she

was beaten by her husband, and therefore, the deceased ended

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her life by pouring kerosene on herself and sat herself ablaze.

The learned Additional Public Prosecutor extensively took this

Court through the evidence of all the prosecution witnesses. She

has also countered the decisions relied upon by learned advocate

appearing on behalf of the respondents - original accused and

submitted that the same are not applicable to the facts of the

present case since all such authorities are pertaining to the

written dying declaration and the facts and circumstances are

totally different.

4.7 Learned APP Ms. Jirga Jhaveri has also argued that the

learned Sessions Judge has committed a grave error in not

appreciating the oral dying declaration, and therefore, when the

marriage span is of three years only, in that case, as per the

settled law, there is statutory provision under Section 113A of the

Evidence Act with regard to presumption as to abetment. Section

113A reads thus:

"113A. Presumption as to abetment of suicide by a married woman. --When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband."

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4.8 Therefore, in the submission of learned Additional Public

Prosecutor, when the death is unnatural / suicidal death and the

victim, who was on deathbed, makes serious allegations of

cruelty upon the accused persons, the learned Sessions Judge

ought to have convicted all the three accused persons.

4.9 Thus, making above submissions, the learned Additional

Public Prosecutor, with all vehemence at her command, urged to

allow this appeal by setting aside the impugned judgment and

order passed by the learned Sessions Judge and to convict the

respondents - accused for the crime in question.

5. Per contra, learned advocate Ms. Richa Shah for the

respondents - accused, while supporting the impugned judgment

and order of the trial Court, submitted that the learned Sessions

Judge has, after due and proper appreciation and evaluation of

the evidence on record, has come to such a conclusion and has

acquitted the accused, which is just and proper. She submitted

that it is trite law that if two views are possible on the basis of the

evidence on record, the appellate Court should not disturb the

finding of acquittal recorded by the trial Court. Further, while

exercising the powers in appeal against the order of acquittal, the

Court of appeal would not ordinarily interfere with the order of

acquittal unless the approach of the lower Court is vitiated by

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some manifest illegality.

5.1 The learned advocate for the respondents - accused

submitted that the ingredients of the offence alleged against the

accused are not proved by the prosecution beyond reasonable

doubt and there were several contradictions and omissions in the

evidence on record and therefore, the learned Sessions Judge has

rightly acquitted the accused of the charges levelled against

them.

5.2 The learned advocate for the respondents - original accused

has heavily contended that in the present case as such, both the

panchas have not supported the case of the prosecution.

Further, it is an accidental death, since the kerosene was found

at the place of incident and smell of kerosene was also found on

the body of the deceased. Therefore, the deceased died due to

blast of stove, and therefore, it is not a suicidal death. She

further argued that if for the sake of argument it is believed that

the case is not an accidental death but suicidal one, in that case

also, the prosecution has not been able to prove the case beyond

reasonable doubt as the ingredients of the offence alleged i.e.

Sections 107 and 306 r/w. 114 IPC and Sections 3 and 7 of the

Dowry Prohibition Act, and therefore also, the learned Sessions

Judge has rightly come to such a conclusion, which requires no

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interference at the hands of this Court as there is no illegality,

perversity and or any error of law. Eventually, she urged that this

appeal as well as the revision application may be dismissed.

5.3 In support, the learned advocate for the respondents -

accused has relied upon following decisions:

i) State of Uttar Pradesh v. Santosh Kumar and Others, (2009) 9 SCC 626;

ii) State of Rajasthan v. Yusuf, (2009) 12 SCC 139;

iii) Keesari Madhav Reddy v. State of Andhra Pradesh, (2011) 2 SCC 790;

iv) Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436;

v) Suryakant Dadasaheb Bitale v. Dilip Bajrang Kale and Another, (2014) 13 SCC 496.

5.4 Relying upon the decision in Suryakant Dadasaheb

Bitale (supra), learned advocate Ms. Shah for the respondents -

accused submitted that so far as revisional jurisdiction is

concerned, the scope is very scant. It is only where the material

evidence is overlooked by the trial Court or the Sessions Court,

the High Court in revisional jurisdiction can interfere with finding

of acquittal. Further, the High Court is precluded from

reappraising the evidence. Further, on facts, it was held that, the

Sessions Court had not ruled out any admissible evidence and

had considered both dying declarations in proper perspective.

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Besides, the view taken by the Sessions Judge was neither

unreasonable nor perverse but was possible reasonable view

based on evidence on record. Thus, High Court in such

circumstances, was not justified in interfering with order of

acquittal in revision. The High Court should confine itself only to

admissibility of the evidence and should not go further and

appraise the evidence.

6. Learned Advocate Mr. H. N. Brahmbhatt appearing for the

revisionist - original complainant has joined with the arguments

advanced by the learned Additional Public Prosecutor and prayed

for to allow the revision application inasmuch as the impugned

judgment and order passed by the learned Judge is erroneous

and against the facts and evidence on record. In support, he has

relied upon a decision of this Court rendered in Criminal Appeal

No. 352 of 2008 on 28.10.2021.

REASONING:

7. Heard the learned advocates for the respective parties and

gone through the impugned judgment and order of the trial Court

as well as the material on record.

7.1 Before adverting to the facts of the case, it would be

worthwhile to refer to the scope in acquittal appeals. It is well

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settled by catena of decisions that an appellate Court has full

power to review, re-appreciate and consider the evidence upon

which the order of acquittal is founded. However, the Appellate

Court must bear in mind that in case of acquittal, there is

prejudice in favour of the accused, firstly, the presumption of

innocence is available to him under the fundamental principle of

criminal jurisprudence that every person shall be presumed to be

innocent unless he is proved guilty by a competent court of law.

Secondly, the accused having secured his acquittal, the

presumption of his innocence is further reaffirmed and

strengthened by the trial Court.

7.2 Centering the aforesaid settled legal position, if the facts of

the present case are seen, the respondents - original accused -

husband and the parents in-laws of the deceased were charged

with the offences punishable under Sections 306, 498-A and 114

of the IPC and Sections 3 and 7 of the Dowry Prohibition Act, trial

of which, was culminated into acquittal, which led the appellant -

State and the original complainant to knock the doors of this

Court by way of this appeal as well as the revision application

respectively.

7.3 As the facts go, prior to about three years, the respondent

No. 1 (husband) and the deceased (wife) had tied the nuptial

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knot. Out of the said wedlock, they had a boy child. Initially,

they resided in joint family, however, for last one and a half years

prior to the incident, they started residing separate. It is further

the case of the prosecution that allegedly, the respondents

started physical and mental torture upon the deceased for dowry.

That on 19.08.2004, the complainant had received call from the

father-in-law of the deceased that his sister had sustained burn

injuries and hence, the complainant rushed and en route, found

father-in-law of the deceased and others taking his sister to the

hospital and on intervention he saw his sister lying wrapped up

with a bed-sheet (chadar) and on taking off the bed-sheet and

asking her about the cause, she informed that the respondents

asked her to bring Rs.10,000/- from the complainant and when

she denied saying earlier also, she had brought Rs.5,000/-, they

beat her up and hence, she went to the place were she along

with the respondent No. 1 used to reside and as she could not

bear such a torture and harassment committed suicide by setting

her ablaze by pouring kerosene and consequently, the FIR in

question came to be registered against the respondents, for

which, in trial, the respondent came to be acquitted of the

charges levelled against them. Grieved by the said decision of

acquittal, present appeal as well as the revision before this Court.

7.4 To prove the case, the prosecution has produced following

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oral as well as the documentary evidence:

Oral Evidence

Sr. PW Name Exhibit

Documentary Evidence

Sr. Particulars Exhibit

2 Panchnama of the place of incident for seizing 34 the muddamal

7.5 Now, if the deposition of PW-1 Nodhanji Kesaji, Exh.31, is

referred to, he appears to be the panch witness of the

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panchnama of place of occurrence, which is also on record at

Exh.32. He narrated the different items which were lying at the

place of occurrence wherein primus was lying without kerosene,

steel kathrot, two fried roti, one damicha (godra) and also

narrated about the surrounding area of the residence of the

accused persons. He was not cross-examined by the defence

witness, and therefore, the same is required to be considered

while appreciating the evidence.

7.6 The prosecution has then testified PW-2 Jagabhai Pathabhai

Chavda at Exh. 33, who has turned hostile, therefore his evidence

may not be read in detail.

7.7 Next is PW-3 Amubhai Bhavsangbhai, Exh. 35 in whose

presence, primus was seized. He has also identified the sari, bra

and the pieces of blouse which were seized in his presence. He

has signed in the concerned slips. Inquest Panchnama is

produced at Exh. 36. Exh. 37 is the panchnama of arrest as well

as physical condition of accused Laxmanbhai @ Lakhabhai

Pratapbhai Thakor and Exh. 38 is the panchnama of arrest as well

as physical condition of accused Gauriben Pratapbhai Thakor.

7.8 The prosecution has then testified PW-4 Dhanabhai

Chaturbhai at Exh.41, who is the complainant and brother of the

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deceased victim. He has narrated that on 19.08.2004, the

incident had occurred. On receiving the telephonic information

from the father-in-law of the deceased victim to the effect that

the victim was burnt, he replied that he is suffering from fever.

He was further informed that they were taking the deceased to

the Patan hospital. Thereafter, this witness along with his mother

- Muliben and other person namely Dineshbhai left for Vadgam.

When they reached at Shankheshwar, they saw a white coloured

car in which, they saw the father-in-law of the deceased and one

of relatives namely Nanuji and hence, they got stopped the car

and saw his sister lying in the middle seat of the car and in

conscious condition. Her face was burnt. On inquiry about the

burning, the deceased victim replied in piecemeal that her

mother-in-law - Gauriben, father-in-law - Pratapji and her

husband Laxmanji demanded Rs.10,000/- and asked her to bring

the same from her brother to which, she replied saying that once

she had brought an amount of Rs.5,000/- from his brother in the

absence of his father and therefore, she would not bring

Rs.10,000/- again from her parental home. Therefore, on being

instigated by his father-in-law and the mother-in-law, her

husband beat her up. Therefore, she had left the house where

her parents-in-law were residing and went to the place where she

along with her husband were residing separate and sat herself

ablaze by pouring kerosene. It is also deposed by this witness

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that before one and half years also, her sister came to her house

due to harassment by her father-in-law, mother-in-law as well as

her husband and also informed about the cruelty due to demand

of money. It is also stated that for eight months, she was at her

parental house (risamne). Thereafter, the complainant

persuaded her and sent her back to the matrimonial home. This

witness has also stated that Rs.5,000/- was given to her sister,

which is yet not returned. Further, her sister (deceased) used to

complain about physical and mental harassment by the

respondents for dowry and on household works. This witness has

admitted his signature in the complaint, Exh. 42. He has also

identified all the accused persons who were present in the Court.

This witness was cross-examined by the defence, where there

appears some minor contradictions. He has not stated that he

was owning a car. Further, he has also not stated in his

complaint that they saw a white car and behind them, he went to

Patan Hospital in his car. He has also admitted that after the

message of burning of his sister, he had not visited Vadgam. He

has denied that his sister had died due to accidental burning

through primus while preparing roti. He has also denied that he

had got the news about accidental burning of his sister while

preparing roti on primus and death of his sister. He has admitted

that he had asked her sister to write him the letter, however, no

such letter is produced on record. He has admitted that he had

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not informed about any such harassment to the police. He has

admitted that in his community (Thakor), one can easily have

divorce and can easily go for second marriage. It is also admitted

that the accused Laxmanji and Pratapji have agricultural land

(khetivadi) and are financially sound. He has denied that a false

complaint is filed for availing more money from the accused

persons. He has also denied that he is giving false deposition.

7.9 At this juncture, it is pertinent to note that not a single

question is asked by the defence so far as the status of his dying

sister / victim is concerned that she was uttering in piecemeal,

levelling allegations against the accused persons including father-

in-law, mother-in-law and her husband qua demand of

Rs.10,000/- and Rs.5,000/- which was given on earlier occasion

and cruelty and physical and mental torture to which, the victim

was being subjected to.

7.10 It is the cardinal principal of law that whenever the facts

deposed by any witness/es in the examination-in-chief remain

uncontested / uncontroverted by the defence, in such

circumstance, the evidence adduced before the Court is

believable and admissible in evidence. In the case on hand, the

complainant in his complaint as well as in his examination-in-

chief on oath has deposed the fact with regard to the oral dying

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declaration given by the deceased, however, the same is not

controverted by the defence in cross-examination and therefore,

it is admissible in evidence. In depth perusal of the impugned

judgment and order reveals that the learned Judge has failed to

appreciate such an aspect in his judgment, which was very much

material and important moresowhen the brother of the deceased

victim had come forward with a specific case of demand of dowry

coupled with cruelty.

7.11 The prosecution has also testified PW-5 Muliben Chaturbhai

at Exh.45. She is the mother of the deceased who deposed that

the incident had happened during the marriage span of three

years. Her daughter had married with the accused No. 1 -

Laxmanji Pratapji Thakor. She has also supported the case of the

prosecution. Though she is a hearsay witness so longer as

cruelty is concerned. Here also, the denial of so-called allegation

is not taken by the defence so longer as the incident of car is

concerned. Though the defence has taken the point of only

demand of money wherein this witness has denied that it is not

true that the in-laws were not asking for money, meaning

thereby, the mother has supported the case of the prosecution to

that effect.

7.12 The prosecution has then testified PW-6 - Sadhu Dineshbhai

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Khemdas at Exh.46. He appears to be the Driver and has fully

supported the case of the prosecution including the statement

made by the deceased victim who was in the car wrapped with a

bed-sheet and when the bed-sheet was taken off by brother of

the deceased - Dhanabhai Chaturbhai, he had seen that the face

of Ramilaben was burnt and she was conscious and on an inquiry

by the brother, victim Ramilaben replied in piecemeal and

levelled the same allegations which were discussed herein above

in preceding depositions. Further, here also the defence has tried

to disprove such fact in single question that it is not true that

Ramilaben has not informed anything to Dhanabhai Chaturbhai

wherein the present witness has answered in negative, and thus,

this witness has fully supported the case of the prosecution.

However, the learned Judge has not appreciated the evidence of

this material witness, and therefore, it appears that the findings

recorded by the learned Judge are perverse.

7.13 Next is PW-7 Kanujibhai Chaturjibhai, Exh. 47. He appears

to be the brother of deceased. He has also deposed what his

brother, the complainant has deposed. He has admitted in cross-

examination that his statement was recorded after 4-5 days of

the incident. Here also he has supported the material allegation

of demand of Rs.10,000/- and cruelty by father-in-law and

mother-in-law as well as husband of the deceased victim.

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7.14 The prosecution has then examined PW-8 Dr. Jayeshbhai

Ranchhodbhai Rathod, Exh. 49. He has categorically stated that

the death of the deceased was caused due to major burns. He

has admitted that if kerosene spills out from the primus and if

somebody falls down upon the same, in that case, smell may

come from the part of the body upon which, kerosene stuck.

7.15 The others are the police witnesses:

7.16 Thus, almost all the prosecution witnesses have supported

the case of the prosecution. It is argued that material witnesses

are the interested witnesses and no independent witness has

been examined. In this regard, it would be worthwhile to refer to

a decision of the Apex Court in Seeman alias Veeranam v.

State, MANU/SC/0395/2005, the Apex Court has held as under:

"4. It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or both, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a case, it is the paramount duty of the Court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested sole witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the court while scrutinizing the evidence of the interested sole witness. The prosecution's non-production of one independent witness who has been named in the FIR

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by itself cannot be taken to be a circumstance to discredit the evidence of the interested witness and disbelieve the prosecution case. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement."

(emphasis supplied)

7.17 Thus, as held in the aforesaid decision that if, on such

scrutiny it is found that the evidence on record of such interested

sole witness is worth credence, the same would not be discarded

merely on the ground that the witness is an interested witness

and the prosecution's non-production of one independent witness

who has been named in the FIR by itself cannot be taken to be a

circumstance to discredit the evidence of the interested witness

and disbelieve the prosecution case.

7.18 Further, it is pertinent to note that the learned Judge has

also arrived at conclusion that so longer as the issue pertaining to

unnatural death is concerned, the inquest panchnama is proved

and supported by the panchas. Further, the marriage span of the

deceased victim with accused Laxmanji is also considered by the

learned Judge as an undisputed fact.

7.19 The Court has gone through the decisions relied upon by

the learned advocate for the respondents in detail. There cannot

be any dispute as regards the ratio laid down in the same,

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however, in the facts and circumstances of the case on hand, the

same are not applicable inasmuch as, most of the decisions are

related to written dying declaration, whereas, the case on hand

relates to the oral dying declaration, which appears to be

trustworthy, reliable and supported by the evidence of the

prosecution witnesses. So far as the decision in Suryakant

Dadasaheb Bitale (supra) is concerned, the scope of revisional

jurisdictional is narrated. It is observed in para 11 as under:

"11. The scope of revisional jurisdiction was considered by this Court in K. Chinnaswamy Reddy v. State of A.P. and held as follows:

"Where the appeal court wrongly ruled out evidence which was admissible, the High Court would be justified in interfering with the order of acquittal in revision, so that the evidence may be reappraised after taking into account the evidence which was wrongly ruled out as inadmissible of the evidence and should not go further and appraise the evidence also..."

7.19.1Further in para 12 of the said decision it is observed as

under:

"12. In Akalu Ahir v. Ramdeo Ram, this Court held that where the material evidence have been overlooked by the trial Court or Sessions Court, the High Court in revisional jurisdiction can interfere with the finding of acquittal."

7.20 Thus, where the evidence is wrongly ruled out as

inadmissible or where the material evidence have been

overlooked by the trial Court or the Court of Sessions, the High

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Court, in revisional jurisdiction can interfere with the finding of

acquittal. Instant is the one such case, wherein, as discussed

herein above, the learned Court of Sessions has overlooked the

material evidence and accordingly, this Court, while exercising

revisional jurisdiction, is very well equipped and to set the things

right.

7.21 Thus, upon re-appreciation and reevaluation of the

evidence adduced by the prosecution, following salient aspects

have been weighed with by the Court:

i) indisputably, the marriage span of the deceased was about three years only and the deceased had committed suicide at her matrimonial home and hence, the provisions of Section 113A of the Evidence Act would attract;

ii) the deceased was conscious and able to talk when the complainant first met her while en route hospital after she sustained burn injuries;

iii) the deceased - victim has, in no uncertain terms, had conveyed the complainant about the cruelty and harassment at the hands of the respondents for want of dowry;

iv) complainant - Dhanabhai Chaturbhai, Exh. 41, mother of deceased Muliben Chaturbhai, Exh. 45, Sadhu Dineshbhai Khemdas, Exh. 46 (independent witness), and Kanujibhai Chaturjibhai, Exh. 47 have clearly supported the

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case of the prosecution;

v) oral dying declaration given by the deceased, which was given in presence of accused - husband while in the car en route hospital, has remained uncontroverted by the defence (respondents - accused);

vi) even independent witness, viz. Driver Sadhu Dineshbhai Khemdas (Exh. 46) has also supported the case of the prosecution;

vii) so far as some contradictions in the depositions of the prosecution witnesses are concerned, it would be apt to refer to a decision of the Apex Court in State of U.P. v. Naresh and Ors., MANU/SC/0228/2011, wherein, the Apex Court has held as under:

"25. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution

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version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.

xxx"

(emphasis supplied)

Thus, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. In the instant case, there may be contradictions in the deposition/s of witness/es, however, the same cannot be termed as so major so as to reject the case of the prosecution in entirety.

viii) it is trite that a person on the deathbed, would not speak lie.

ix) recently, the Apex Court in the case of Laltu Ghosh v. State of West Bengal, MANU/SC/0236/2019 [Criminal Appeal No. 312 OF 2010, decided on 19.02.2019] has an occasion to discuss the oral Dying Declaration. In para 18, it is observed as under:

"It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence. A dying declaration, if found reliable, and if it is not an attempt by the deceased to cover the truth or to falsely implicate the accused, can be safely relied upon by the courts and can form the basis of conviction.

More so, where the version given by the deceased as the dying declaration is supported and corroborated by

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other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration. The doctor PW-18, who recorded the statement of the deceased which was ultimately treated as his dying declaration, has fully supported the case of the prosecution by deposing about recording the dying declaration. He also deposed that the victim was in a fit state of mind while making the said declaration. We also do not find any material to show that the victim was tutored or prompted by anybody so as to create suspicion in the mind of the Court. Moreover, in this case the evidence of the eye- witnesses, which is fully reliable, is corroborated by the dying declaration in all material particulars. The High Court, on re-appreciation of the entire evidence before it, has come to an independent and just conclusion by setting aside the judgment of acquittal passed by the Trial Court. The High Court has found that there are substantial and compelling reasons to differ from the finding of acquittal recorded by the Trial Court. The High Court having found that the view taken by the Trial Court was not plausible in view of the facts and circumstances of the case, has on independent evaluation and by assigning reasons set aside the judgment of acquittal passed by the Trial Court. We concur with the judgment of the High Court, for the reasons mentioned supra."

x) further, recently, in the case of Naresh Kumar v. Kalawati & Ors., MANU/SC/0218/2021 [Criminal Appeal No. 35 of 2013, decided on 25.03.2021], the Apex Court in para 9 has observed as under:

"9. A dying declaration is admissible in evidence under Section 32 of the Indian Evidence Act, 1872. It alone can also form the basis for conviction if it has been made voluntarily and inspires confidence. If there are contradictions, variations, creating doubts about its truthfulness, affecting its veracity and credibility or if the dying declaration is suspect, or the accused is able to create a doubt not only with regard to the dying declaration but also with regard to the nature and manner of death, the benefit of doubt shall have to be given to the accused. Therefore much shall depend on the facts of a case. There can be no rigid standard or

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yardstick for acceptance or rejection of a dying declaration."

In the case on hand, the last statement made by the deceased victim was the same which is reiterated by the complainant / the first informant (the brother of the deceased victim) as well as the driver of the car of the complainant. Therefore, there is no reason to disbelieve the same.

xi) the learned Sessions Judge has also taken into consideration Further Statements of the accused under Section 313 of the Code and in the facts and circumstances of the case, has discarded the case of the defence that the death was accidental i.e. due to burn injuries while cooking and in the given facts and circumstances of the case and considering the evidence on record, has rightly arrived at the conclusion that deceased Ramilaben had committed suicide (para 33 & 34 page 48-50 of the impugned judgment).

7.22 It is a settled principle of criminal jurisprudence that the

burden of proof lies on the prosecution and it has to prove a

charge beyond reasonable doubt. The presumption of innocence

and the right to fair trial are twin safeguards available to the

accused under our criminal justice system but once the

prosecution has proved its case and the evidence led by the

prosecution, in conjunction with the chain of events as are stated

to have occurred, if, points irresistibly to the conclusion that the

accused is guilty then the Court can interfere in the judgment of

acquittal to ensure that the ends of justice are met. This is the

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linchpin around which, the administration of criminal justice

revolves.

Conclusion:

8. Thus, on re-appreciation and reevaluation of the oral and

the documentary evidence on record, it transpires that the

prosecution has succeeded in proving the case against the

accused beyond reasonable doubt inasmuch as the ingredients of

the offence alleged are fulfilled. The Court has gone through in

detail the impugned judgment and order and found that the

learned Judge has failed to consider the evidence on record in its

true and proper perspective and came to the wrong conclusion

that the prosecution has failed to prove the case against the

accused beyond reasonable doubt.

9. For the forgoing discussion and observations, the present

appeal as well as the criminal revision application succeed and

are allowed accordingly. Impugned judgment and order dated

10.07.2007, passed in Sessions Case No. 29 of 2004, by the

learned Presiding Officer and Additional Sessions Judge, Fast

Track Court No. 1, Dhrangadhra, recording the acquittal is hereby

set aside. Respondents - accused i) Laxmanbhai @ Lakhabhai

Pratapbhai Thakor, ii) Pratap Valabhai Thakor and iii)

Gauriben W/o. Pratapbhai Valabhai Thakor are held guilty

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and convicted for the offences punishable under Sections 306

and 498-A r/w. Section 114 of the Indian Penal Code, 1860 and

Sections 3 and 7 of the Dowry Prohibition Act.

10. As per the settled legal position and catena of decisions of

the Apex Court, where the minimum punishment is prescribed for

an offence and the Court proposes to impose the minimum

punishment only, in that case the Court is not required to hear

the accused on the quantum of sentence. However, in the

present case, the respondents - accused are held to be guilty for

the aforesaid offences where no minimum punishment is

prescribed for and accordingly, the Court has heard the

respondents, who are present in the Court as well as the learned

advocate representing the respondents so also the learned

Additional Public Prosecutor on the quantum of punishment under

Section 235(2) of the Code.

10.1 The learned advocate for the respondents has submitted

that the respondent Nos. 2 and 3 are old aged and the

respondent No. 2, the father-in-law is also not keeping well.

Further, the respondent No. 1 has the responsibility of the

respondent Nos. 2 and 3. Besides, the learned advocate for the

respondents submitted that the impugned judgment and order of

acquittal is of 2007 and more than a decade has been elapsed

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thereafter and accordingly, considering the extant circumstances,

since the Court has found the respondents guilty of the offences

charged against them, it is urged that the Court may show some

leniency in imposing the sentence.

10.2 As against this, the learned APP for the appellant - State

has urged that the respondents were charged with the offences

punishable under Sections 498-A, 306 and 114 of the Indian

Penal Code, 1860 and Sections 3 and 7 of the Dowry Prohibition

Act. Accordingly, since the maximum punishment for the offence

punishable under Section 306 IPC is up to 10 years and fine,

looking to the nature and gravity of offence, maximum

punishment may be imposed.

10.3 Nonetheless, the learned Additional Public Prosecutor for

the appellant - State, upon instructions, states at bar that so far

as the respondent No. 2 - Pratap Valabhai Thakor is concerned,

he is suffering from paralysis and is unable to remain present

before the Court. The learned Additional Public Prosecutor, made

available the copy of statement of even date, recorded before the

Police Sub Inspector, Dasada Police Station, accompanied by

copy of the medical paper of Community Health Center, Dasada,

which is taken on record, a perusal of which reveals that the

respondent No. 2 is suffering from paralysis and is bedridden. He

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is unable to move or stand-up on his own. He was undergoing

treatment at Kunpur village, however, he does not have any

papers to that effect.

10.3.1 In the given circumstance, the learned advocate for the

respondents has requested to differ the pronouncement of

sentence qua the respondent No. 2.

10.3.2 In this regard, reference can be made to Section 353 of

the Code, more particularly, clause (6) of the same, which speaks

that, if the accused is not in custody, he shall be required by the

Court to attend to hear the judgment pronounced, except where

his personal attendance during the trial has been dispensed with

and the sentence is one of fine only or he is acquitted: Provided

that, where there are more accused than one, and one or

more of them do not attend the Court on the date on

which the judgment is to be pronounced, the presiding

officer may, in order to avoid undue delay in the disposal

of the case, pronounce the judgment notwithstanding

their absence.

10.3.3 Further, as per clause (7) to Section 353, no judgment

delivered by any Criminal Court shall be deemed to be

invalid by reason only of the absence of any party or his

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pleader on the day or from the place notified for the

delivery thereof, or of any omission to serve, or defect in

serving, on the parties or their pleaders, or any of them,

the notice of such day and place.

10.3.4 Besides, the Court has also gone through an order passed

by the coordinate Bench in Special Criminal Application

(Quashing) No. 9113 of 2116 on 22.02.2017, wherein, it is

observed that there is no illegality could be said to have been

committed, if the judgment and order of conviction and sentence

is passed in the absence of the accused. Accordingly, the Court

deems it proper to proceed with the matter.

11. Heard the learned advocates for the parties on the

quantum of sentence to be awarded to the respondents -

accused for the offences punishable under Sections 498-A, 306

and 114 of the Indian Penal Code, 1860 and Sections 3 and 7 of

the Dowry Prohibition Act to which, they are held to be guilty. It

is settled principle of criminal justice system that if a perpetrator

of crime is sat free, in that case, the concept of deterrent theory

may not work and there might be adverse effect upon the

society. Further, one of the objects of imposing the punishment

is to see that other may not prone to such crimes in future.

Besides that, in the contemporary situation, the suicidal death by

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married women is alarming one. Nonetheless, simultaneously,

the Courts, while passing the orders of sentence, should also

consider the facts and circumstances of each case. Accordingly,

having regard to the submissions advanced and looking to the

facts and circumstances of the case on hand, the respondents -

original accused are ordered to undergo the following sentence:

   Accused                                  Offence
                     306 r/w. 114         498-A r/w.          3&7
                         IPC                 114           Dowry Prohi.
                                             IPC               Act
No. 1 -              Rigorous          RI for 2 years     RI     for     6
Laxmanbhai           Imprisonmen       with   fine of     months      with
@ Lakhabhai          t (RI) for 5      Rs.5,000/- and     fine          of
Pratapbhai           years      with   i/d. of paying     Rs.1,000/-
Thakor               fine         of   fine, SI for 1     and    i/d.   of
                     Rs.25,000/-       month              payment       of
                     and   i/d.   of                      fine, SI for 1
                     payment     of,                      month
                     simple
                     imprisonmen
                     t (SI) for 6
                     months
No. 2 -              SI for 1 year     SI for 1 year      SI     for     6
Pratap               with fine of      with   fine of     months      with
Valabhai             Rs.25,000/-       Rs.5,000/- and     fine          of
Thakor               and    i/d. of    i/d. of paying     Rs.1,000/-
                     payment of, SI    fine, SI for 1     and    i/d.   of
                     for 3 months      month              payment       of
                                                          fine, SI for 1
                                                          month
No. 3 -              SI for 1 year     SI for 1 year      SI     for     6
Gauriben             with fine of      with   fine of     months      with
W/o.                 Rs.25,000/-       Rs.5,000/- and     fine          of
Pratapbhai           and    i/d. of    i/d. of paying     Rs.1,000/-
Valabhai             payment of, SI    fine, SI for 1     and    i/d.   of
Thakor               for 3 months      month              payment       of
                                                          fine, SI for 1
                                                          month





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 i)       All the sentences are to run concurrently.



 ii)      The sentence already undergone by the respondents -

          accused is ordered to be given set off.



 iii)     The respondents - original accused are directed to

surrender to custody on or before 30th August 2022

to undergo the remaining sentence as aforesaid, failing

which, the learned Sessions Judge concerned is at

liberty to issue warrant to secure the custody of the

respondents - accused.

iv) Bail bond, if any, shall stand cancelled accordingly.

v) Fine, as aforesaid, be deposited by the respondents

within 4 (four) weeks from today.

vi) Out of the total fine amount of Rs.93,000/-, that may

be deposited by the respondents, Rs.90,000/- towards

fine, be given to the original complainant - Dhanabhai

Chaturbhai by the learned Court, on proper verification