Jemaben vs The State Of Gujarat

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1934 OF 2017

JEMABEN …APPELLANT(S)

Versus

THE STATE OF GUJARAT …RESPONDENT(S)

JUDGMENT

VIPUL M. PANCHOLI, J.

1. The present appeal has been directed against the final order

dated 21.07.2016 passed by the High Court of Gujarat at

Ahmedabad in Criminal Appeal No. 539 of 2006, by which

the High Court has allowed the appeal filed by the State of

Gujarat qua the present appellant/accused, and thereby,

partly set aside the judgment dated 19.11.2005 rendered by

the Additional Sessions Judge and Presiding Officer, 6 th Fast Signature Not Verified Digitally signed by

Track Court, Banaskantha, at Deesa in Sessions Case KANCHAN CHOUHAN Date: 2025.10.29 17:23:51 IST Reason:

Criminal Appeal No. 1934 OF 2017 Page 1 of 11 Number 40 of 2005. Thus, the High Court convicted the

appellant/accused for committing the offence punishable

under Section 302 of the Indian Penal Code, 1860

(hereinafter referred to as “the IPC”) and sentenced with

imprisonment for life and a fine of ₹ 10,000/-, and in

default to further undergo simple imprisonment of one

month.

2. The brief facts of the present case are as under:-

(i) It is the case of the prosecution that the

appellant/accused and the co-accused, Bherabhai

Revaji Majirana, entered into criminal conspiracy in

order to kill Leelaben and Ganesh, her son, and to

execute the said conspiracy, on the date of the

incident, i.e. the intervening night of 29.11.2004 and

30.11.2004, when Leelaben and her son were sleeping

in their hut, the appellant/accused poured kerosene

upon Leelaben and set her ablaze. As a result,

Leelaben received severe burn injuries and she was

taken to the Civil Hospital, Palanpur. On 04.12.2004,

Leelaben succumbed to the injuries, and her son

received burn injuries to the extent of 10 to 12%.

Criminal Appeal No. 1934 OF 2017 Page 2 of 11 (ii) On 05.12.2004, the complaint was filed by PW-1,

Geetaben (sister of Leelaben). On the basis of the

complaint, the investigating officer carried out the

investigation and during the course of the

investigation, the statement of the witnesses were

recorded, the evidence was collected and thereafter the

chargesheet was filed against both the accused

persons. The charges were framed for offences

punishable under Sections 302, 307, 436, 34, 120 (b)

of the IPC and Section 135 of the Bombay Police

Act,1951.

(iii) The Trial Court acquitted both the accused persons,

mainly on the ground that there are discrepancies in

three dying declarations given by Leelaben, the

deceased.

(iv) The State of Gujarat challenged the order of acquittal

by filing a Criminal Appeal before the High Court. The

High Court vide the impugned order allowed the appeal

qua the appellant/accused and thereby, set aside the

order of acquittal passed by the concerned trial court.

The High Court convicted the appellant/accused for

Criminal Appeal No. 1934 OF 2017 Page 3 of 11 committing the offence punishable under Section 302

of the IPC.

3. Against the impugned order passed by the High Court, the

appellant/accused has preferred the present appeal.

4. Learned Counsel appearing for the appellant/accused

mainly contended that the case of the prosecution rests

primarily on the dying declaration given by the deceased.

However, there are major discrepancies in the story put

forward by the prosecution. In fact, version of the

complainant (PW-1), Kalubhai Lakhuji (PW-4, husband of

Leelaben), as well as other documentary evidence contain

major discrepancies, inconsistencies and material

contradictions. Thus, the trial court has rightly acquitted

the appellant/accused, despite which, the High Court has,

substantially relied upon the deposition given by Dr.

Shivrambhai Nagarbhai Patel, (PW-3, Incharge Medical

Officer) as well as relied upon the Yadi given by the said

Doctor to the Police, which mentioned the history given by

the deceased before the said witness, and thereby recorded

the order of conviction of the appellant/accused. Learned

Counsel submitted that the High Court has committed grave

Criminal Appeal No. 1934 OF 2017 Page 4 of 11 error while relying upon the Medical Certificates of Leelaben

and Ganesh (Exhibit 20 and 21, respectively).

5. It is further submitted that because there are major

discrepancies in the three dying declarations given by the

deceased, the trial court has acquitted the

appellant/accused by giving benefit of doubt to the

appellant/accused. Therefore, even if there are two views

possible on the basis of the evidence led by the prosecution

before the trial court, when the trial court has taken the one

possible view, the High Court ought not to have interfered

with the said view taken by the trial court. Learned Counsel

for the appellant/accused, therefore, urged that the

impugned order passed by the High Court be set aside and

thereby, the appellant/accused be acquitted.

6. Per contra, learned counsel appearing for the respondent-

state has vehemently opposed the present appeal. Learned

Counsel for the State mainly submitted that, in the case of

multiple dying declarations, each dying declaration will have

to be considered independently on its own merit as to its

evidentiary value and one cannot be rejected because of the

contents of the other. It is submitted that in the present

Criminal Appeal No. 1934 OF 2017 Page 5 of 11 case, even though the dying declaration has not been

recorded by the Executive Magistrate, it is clear from the

medical certificate issued by PW-3, that the statement of the

deceased, recorded first in point of time, reveals that the

deceased was burnt by the appellant/accused, who was the

aunt-in-law of the deceased, by pouring kerosene from the

tin and setting the deceased on fire. On the very same day,

the deceased described the motive behind the incident that

the appellant/accused was compelling the deceased to go

with one, Mania Dabhawala, with whom the

appellant/accused was acquainted and refusal by the

deceased thereto, resulted into the incident in question. It is

further submitted that from the postmortem report (Exhibit

25), and severe burn injuries sustained by the deceased

almost all over the body and the manner in which the burn

injuries were caused, would reveal that it was not the case

of an accidental death.

7. Learned Counsel for the respondent-State further referred to

the panchnama (Exhibit 12) and submitted that one empty

kerosene container having smell of kerosene was found at

the place of incident. Similarly, soil having smell of kerosene

Criminal Appeal No. 1934 OF 2017 Page 6 of 11 was also collected from the place of incident. At this stage, it

is further submitted that even PW-3 deposed that the whole

body and clothing of the deceased was having the smell of

kerosene and she sustained 100% burn injuries.

8. Learned Counsel for the respondent-State, lastly, contended

that the son of the deceased was sleeping beside the

deceased. However, from the Medical Certificate issued by

PW-3, it is revealed that the said boy, aged about 4 years,

sustained 10-12% burn injuries. Learned Counsel for the

respondent-State, therefore, contended that from the

aforesaid evidence led by the prosecution, it can be said that

the dying declaration given by the deceased before the

independent witness, i.e. PW-3, is rightly relied upon by the

High Court. It is further submitted that there was only one

possible view on the basis of the aforesaid evidence which

was required to be taken by the trial court, and therefore,

when the trial court has not properly appreciated the

aforesaid important aspects/evidence in the present matter,

the High Court has rightly set aside the order of acquittal

passed by the trial court qua the appellant/accused.

Learned Counsel, therefore, urged that no interference is

Criminal Appeal No. 1934 OF 2017 Page 7 of 11 required in the impugned order of the High Court and the

present appeal is liable to be dismissed.

9. We have considered the submissions canvassed by the

learned counsel for the parties. We have also perused the

entire record and the evidence led by the prosecution.

10. It emerged from the record that when the deceased was

brought to the hospital, she narrated the incident before the

Doctor (PW-3) wherein she specifically stated that “my aunt-

in-law, Jemaben poured kerosene on me and set ablaze.”

Further, when she was asked again by the doctor, she

disclosed that “my aunt-in-law asked me to go with Mania

Dabhawala, I refused for the same and, therefore, she burnt

me alive”. It is pertinent to note that the aforesaid

documentary evidence was duly proved as per the testimony

of PW-3. Similarly, the Yadi given by the Doctor to Police

Station, Palanpur city, further suggests that deceased

specifically narrated that the appellant/accused, her aunt-in-

law, set her ablaze. It is also specifically stated by the Doctor

in the said Yadi that the patient was conscious and she was

in a position to speak. Therefore, the said police officer was

asked to make arrangements for recording the dying

Criminal Appeal No. 1934 OF 2017 Page 8 of 11 declaration of the deceased. At this stage, it is also relevant to

observe that the Medical Certificate of the deceased also

states that the “whole body and clothing having kerosene

smelling burns about 100%”.

11. From the panchnama, it further transpires that

investigating agency found “one empty container having

kerosene smell” from the place of incident. Similarly, the soil

of the surface of the hut (the place of incident) was having

smell of kerosene. Thus, the aforesaid document also

corroborates the version given by the deceased before the

independent witness, i.e. PW-3, the Doctor. At this stage, it

is also relevant to observe that PW-3 deposed before the court

that the son of the deceased, aged about 4 years, was

brought before him by the relatives of the deceased and when

inquired they told that the said boy sustained burn injuries

along with his mother. It is further stated by the said witness

that the said boy sustained 10-12% burn injuries on his

lower legs and feet. Thus, from the aforesaid evidence led by

the prosecution, it is revealed that the dying declaration

given by the deceased before the Doctor is supported by other

evidence led by the prosecution.

Criminal Appeal No. 1934 OF 2017 Page 9 of 11

12. On perusal, it is clear that the deceased sustained 100%

burn injuries and from the whole body and the clothes of the

deceased, the smell of kerosene was found. However, the 4

years old son of the deceased was sleeping beside the

deceased and he sustained only 10-12% burn injuries. Thus,

the theory of accidental fire at the place of incident put

forward by the appellant/accused cannot be believed.

13. We are of the view that merely because there are minor

discrepancies in the version given by the prosecution witness

with regard to the dying declaration and with regard to the

manner of occurrence of the incident, the first dying

declaration given by the deceased before the independent

witness, i.e PW-3, cannot be ignored. The first dying

declaration is supported by the independent documentary

evidence, and therefore, the High Court has rightly placed

reliance upon the decision rendered by this Court in the case

of Nallam Veera Stayanandam & Ors. v. Public

Prosecutor, High Court of A.P., (2004) 10 SCC 769, and

thereby, rightly set aside the order of acquittal rendered by

the trial court qua the appellant/accused.

Criminal Appeal No. 1934 OF 2017 Page 10 of 11

14. We are also of the view that on the basis of the aforesaid

evidence as discussed hereinabove, only one view was

possible, despite which, the trial court had acquitted the

appellant/accused. Thus, the High Court has rightly set

aside the order of the trial court.

15. In view of the aforesaid facts and circumstances of the

present case set out in the detailed analysis above, we are of

the view that no interference is required in the impugned

judgment passed by the High Court in Criminal Appeal

Number 539 of 2006. Accordingly, the present appeal stands

dismissed.

.......……….…………………….J. [RAJESH BINDAL]

...….....………………………….J. [VIPUL M. PANCHOLI] NEW DELHI, OCTOBER 29, 2025.

Criminal Appeal No. 1934 OF 2017 Page 11 of 11