Gujarat High Court
State Of Gujarat vs Hamidaben Ismailbhai Jadeja on 8 October, 2025
NEUTRAL CITATION
R/CR.A/804/1997 JUDGMENT DATED: 08/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 804 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA Sd/-
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI Sd/-
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Approved for Reporting Yes No
✔
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STATE OF GUJARAT
Versus
HAMIDABEN ISMAILBHAI JADEJA
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Appearance:
MR. JAY MEHTA, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1
MR MH BAREJIA(142) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI
DESAI
Date : 08/10/2025
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA)
[1] The appeal is preferred challenging an order of acquittal.
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[2] The prosecution contended that on 15.03.1996, the
accused had gone to the residence of the deceased - Fatuben at
about 7.30 a.m. in the morning and due to a dispute between
them, she had poured kerosene on the deceased and set her
alight. It was stated that the deceased was immediately shifted
to the hospital where a dying declaration of the deceased was
recorded, and thereafter, on 21.03.1996, at about 8.00 a.m., she
expired.
[3] It was stated that the complaint was lodged on the same
day and an investigation was also commenced, and after
completion of the investigation, a charge-sheet was laid against
the accused for the commission of an offence under Section 302
of the Indian Penal Code. On the matter being committed to the
Sessions Court, a charge was framed, and since the accused
pleaded not guilty, she was tried.
[4] During the course of the trial, eight witnesses were
examined, including the husband of the deceased, the doctor
who was stated to have treated the deceased and also the
Executive Magistrate who recorded the dying declaration.
Documentary evidence was also adduced, including the medical
records were also marked.
[5] The Trial Court, on appreciating the evidence adduced
before it, came to the conclusion that the dying declarations
which was made and which was relied upon the prosecution to
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prove its case were not credible and there were several
discrepancies which vitiated those dying declarations. The Trial
Court, after noticing the discrepancies, thought it fit to discard
the dying declaration and proceeded to acquit the accused. As a
consequence, the State is in appeal.
[6] Shri Jay Mehta, learned Additional Public Prosecutor
strenuously contended that this was a case in which there were
not one but three dying declarations and since the medical
evidence on record indicated that the deceased was conscious,
the same could not have been discarded merely because a
medical certificate had not been obtained. He placed strong
reliance on the Judgment of the Hon'ble Apex Court rendered in
the case of State of Madhya Pradesh versus Dal Singh
reported in 2013 (0) AIJEL-SC 54073, to contend that even in
a case of 100% burns, the necessity of obtaining a certificate
provided by a doctor in respect of the state of the deceased was
not essential in every case. He submitted that since the
Executive Magistrate was satisfied that the deceased was
conscious and had recorded her statement, the requirement of a
medical certificate was unnecessary. He also pointed out that
though the incident occurred on 15.03.1996, the deceased
passed away ultimately on 21.03.1996, i.e., after a period of six
days and all through this period of six days she was conscious
and therefore her dying declaration could not have been
ignored.
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[7] Learned counsel appearing for the accused, on the other
hand, supported the judgment and contended that the
discrepancies pointed out by the Trial Court were sufficient to
warrant an acquittal and that no interference was called for
even if a probable contrary view could be taken by this Court.
[8] After considering the arguments, the only point that arises
for consideration is as to whether the Trial Court was justified in
acquitting the accused of the offence of Section 302 of the IPC.
[9] As narrated above, the entire case of the prosecution
hinged on the dying declarations given by the deceased.
[10] The facts as narrated by the prosecution were that the
deceased was set on fire on 15.03.1996 at about 7.30 a.m. by
the accused. An FIR was also lodged on the same day.
However, the time at which the FIR was registered is not
forthcoming.
[11] It is the case of the prosecution that the deceased was
conscious when she was admitted to the hospital on 15.03.1996
at 1.00 pm. It is the further case of the prosecution that the
police sub-inspector had recorded a dying declaration as per
Exhibit '26'. As far as this dying declaration is concerned, it is
to be noticed here that the time at which it was recorded is not
forthcoming. Furthermore, the place at which this dying
declaration was recorded is also not forthcoming. The police
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sub-inspector, who was examined as P.W.-7 has admitted in his
cross-examination that he had not endorsed the time on which
he had recorded the dying declaration. In light of this lacuna,
the dying declaration said to have been recorded by the Police
Inspector becomes doubtful.
[12] Another factor which is to be noted in this case is that the
husband of the deceased, who was examined as PW-5 had
deposed during his examination-in-chief that he came into the
house immediately after the incident and the deceased was
conscious and told him that the accused had set his wife on fire.
However, in the cross-examination, he has stated that when he
came into the house, the deceased was severely burnt and was
unconscious. If this statement in cross-examination is to be
accepted, it destroys his evidence that she had given a dying
declaration at the earliest point in time to the effect that the
accused had set her on fire.
[13] If this statement that the deceased was unconscious is to
be accepted, it is not explained as to when she regained
consciousness and whether she was conscious at the time of her
being admitted to the hospital. This statement of the husband
would also create a doubt regarding the mental condition of the
deceased, and as already noted above, it is the admitted case of
the prosecution that the deceased had suffered burns all over
her body to the extent of nearly 96% and there were 2 nd and 3rd
degree burns. This factor would, therefore, be a vital ingredient
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to appreciate as to whether the deceased was capable of giving
a valid dying declaration.
[14] It is to be stated here that the case of the prosecution was
that a yadi was sent to the Executive Magistrate, and this yadi is
stated to have been sent at about 1.10 p.m. and this yadi also
contains an endorsement of the doctor to the effect that the
patient was conscious. This yadi, which is supposed to have
been sent at about 1.10 p.m. with the doctor's endorsement has
been received by the Executive Magistrate only at 3.00 p.m. and
the Executive Magistrate had thereafter recorded the dying
declaration between 3.28 p.m. to 3.45 p.m. The timeline
between 1.10 p.m. and 3.28 p.m. taken for sending the yadi to
the Executive Magistrate is not explained by the prosecution.
The reason for the delay in communicating the yadi to the
Executive Magistrate is also not forthcoming.
[15] It is to be stated here that when the Police Inspector
obtained an endorsement from the doctor that the patient was
conscious at 1.10 p.m., it was obvious that he was of the view
that a medical certificate was necessary regarding the state of
the deceased to be informed to the Executive Magistrate for the
purpose of recording the dying declaration.
[16] The deceased was admittedly admitted at about 1.00 p.m.
The medical records which are produced indicate that she was
admitted at about 1.00 p.m. by Dr. Ajay and the entry in the
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MLC register states, "alleged history of burns", "patient
conscious" and "burns all over the whole bodies about 90 to 95
percent". In this MLC register, there is no mention of any
homicidal burns.
[17] Dr. Abdul Razak, who was stated to have treated the
deceased was examined as PW-8. During his examination-in-
chief itself, he has stated that the deceased was brought into the
burns ward at about 1.10 p.m. and she was admitted
immediately. He also went on to state that Dr. Mayur was
present along with him at that time and that the deceased had
given the history of her homicidal injuries. He has stated that
the deceased had informed the doctor that she had been burned
by someone, and accordingly, the history was noted in the case
papers. It is also stated by him in his cross-examination that he
does not know Gujarati language but can understand Gujarati it.
He has also stated that the history of the patient was written by
Dr. Mayur and the treatment was given to the patient by him
and the entries in the case papers were made by him. He also
admits that Dr. Mayur was alive and his whereabouts were also
known and he could be secured to the Court.
[18] This evidence given by Dr. Abdul Razak would indicate
that the history of the case was given by the deceased to Dr.
Mayur and the history was recorded by Dr. Mayur. If the
history was in fact recorded by Dr. Mayur, it was essential that
the prosecution examined Dr. Mayur to prove that the deceased
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had narrated the history of her burns. Since Dr. Mayur had not
been examined, the dying declaration comes under a cloud,
more so when Dr. Abdul Razak himself states that the deceased
had not stated as to who set her alight and that she merely
stated that someone had poured kerosene and had set her
alight. If the recording of history by Dr. Mayur did not indicate
that the accused had set the deceased on fire, the entire dying
declaration recorded by the Executive Magistrate and the Police
Inspector would also become doubtful.
[19] As far as the dying declaration recorded by the Executive
Magistrate, as already noticed above, there is a timeline of two
hours between the obtaining of a certificate from the doctor and
its communication to the Executive Magistrate, which has not
been explained. The dying declaration given by the deceased to
the Executive Magistrate indicates that she was set on fire at
9.30 p.m. by the accused. However, all along it was the case of
the prosecution that she had been set alight at 7.00 a.m. in the
morning. This discrepancy regarding the timing of the incident
has not been explained properly.
[20] It is to be borne in mind that the deceased had suffered
second-degree and third-degree burns all over her body and she
had in fact suffered burns to the extent of 96%. If the deceased
had suffered 96% burns and that too all over her body, the
mental capacity of her to make a statement regarding the
manner in which the incident took place would have to be
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examined thoroughly. If, according to the doctor, she had
stated that she had been set alight by someone, but the dying
declarations indicated that she alleged that the accused had set
her on fire, there is a glaring discrepancy regarding the manner
in which the incident took place. If the deceased had indicated
to the doctor that she was not aware as to who set her alight,
her subsequent dying declarations in which she named the
accused cannot be accepted straightaway. The non-examination
of the doctor who examined the deceased and recorded the
history vitiates the entire evidence leading up to the dying
declaration.
[21] The Trial Court has noticed these discrepancies and has
come to the conclusion that the dying declarations cannot be
accepted to establish the guilt of the accused. Learned
Additional Public Prosecutor, however, contends that a dying
declaration would be credible if the person who recorded the
same was satisfied regarding the mental condition of the person
giving the declaration. He submitted that since the medical
evidence indicated that the deceased was conscious, the
statements given by her to the Executive Magistrate would have
to be accepted as the truth. In our view, this argument cannot
be accepted since the evidence adduced by Dr. Abdul Razak
categorically states that she had not named the accused when
she narrated the history to Dr. Mayur, who had recorded the
history. If, at the very first point in time, the deceased had not
named the accused, the subsequent dying declarations given
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merely two and a half hours thereafter to the Executive
Magistrate, wherein she named the accused, cannot be
accepted, and this discrepancy in her dying declaration would
vitiate the same. We are, therefore, of the view that the order
of acquittal passed by the Sessions Court cannot be found fault
with.
[22] It is also to be noticed here that the prosecution has not
been able to establish a clear motive for the deceased to have
been set at fire by the accused. The evidence on record
indicates that the deceased was aged 65 years and an attempt is
made to suggest that there was some criminal case lodged in
respect of a girl who was staying with the deceased and who
had eloped with somebody, which resulted in the accused being
remanded to police custody. However, the prosecution also
seeks to contend that the dispute arose due to the collection of
rents by the deceased and the same was not handed over to the
accused. This variation in the motive would also vitiate the case
of the prosecution and would result in a failure to establish a
motive strong enough for the accused to set a 65-year-old on
fire. We are, therefore, of the view that there is no infirmity in
the order of acquittal passed by the Sessions Court to justify any
interference.
[23] It is to be borne in mind that in an appeal against an
acquittal, merely because a contrary view can be taken, that
would by itself be insufficient to reverse an order of acquittal.
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As far as the reliance on the judgment by the learned Additional
Public Prosecutor is concerned, which is in the case of State of
Madhya Pradesh (supra), it is to be stated here that in Para
'14', the Supreme Court has stated as follows:-
"14. The law on the issue can be summarised to the effect
that law does not provide who can record a dying
declaration, nor is there any prescribed form, format, or
procedure for the same. The person who records a dying
declaration must be satisfied that the maker is in a fit
state of mind and is capable of making such a statement.
Moreover, the requirement of a certificate provided by a
Doctor in respect of such state of the deceased, is not
essential in every case.
Undoubtedly, the subject of the evidentiary value and
acceptability of a dying declaration, must be approached
with caution for the reason that the maker of such a
statement cannot be subjected to cross-examination.
However, the court may not look for corroboration of a
dying declaration, unless the declaration suffers from any
infirmity.
So far as the question of thumb impression is concerned,
the same depends upon facts, as regards whether the skin
of the thumb that was placed upon the dying declaration
was also burnt. Even in case of such burns in the body, the
skin of a small part of the body, i.e. of the thumb, may
remain intact. Therefore, it is a question of fact regarding
whether the skin of the thumb had in fact been completely
burnt, and if not, whether the ridges and curves had
remained intact."
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[24] It is to be noticed here that the Hon'ble Apex Court has
stated that the requirement of a certificate provided by a doctor
in respect of the state of the deceased would not be essential in
every case. However, in this case, the police sub-inspector
himself thought it fit to secure a certificate from the doctor that
the patient was conscious. It therefore follows that the police
sub-inspector was aware that the mental status of the deceased
was a vital factor which was required to be recorded by a
doctor. As stated before, the deceased did not state before the
doctor, when she narrated the history, that she had been set on
fire by the accused and the history recorded is that she was set
on fire by someone. If the deceased herself was unaware as to
who had set her on fire, her subsequent improvement in the
declaration would be insufficient to render it credible so as to
warrant an order of conviction.
[25] The appeal is therefore dismissed.
[26] Record and proceedings, if any, be sent back to the
concerned Court forthwith. Bailable warrant stands cancelled.
Sd/-
(N.S.SANJAY GOWDA, J.)
Sd/-
(UTKARSH THAKORBHAI DESAI, J.)
DHARMENDRA KUMAR
