Shambhubhai Kalabhai Raval vs The State Of Gujarat

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 06 OF 2011

SHAMBHUBHAI KALABHAI RAVAL …...APPELLANT(S)

VERSUS

STATE OF GUJARAT …...RESPONDENT(S)

JUDGMENT

ABHAY S. OKA, J.

1. The appellant is the husband of the deceased, who was

convicted for the offences punishable under Sections 306 and 498A

of the Indian Penal Code (for short ‘IPC’). The marriage between

the appellant and the deceased was ten years old, when on

31.07.1994, the deceased poured kerosene on her own body and set

herself ablaze. The burn injuries suffered by her was the cause of

death, which happened on 04.08.1994. The prosecution mainly relied

upon the dying declaration of the deceased recorded by PW3-

Kachrabhai. The dying declaration was recorded between 09:45 P.M. Signature Not Verified

to 10:00 P.M. on 31.07.1994. Apart from relying upon the dying Digitally signed by Neetu Khajuria Date: 2023.11.06 16:48:41 IST Reason:

declaration, the prosecution relied upon the evidence of PW1- 2

Dolabhai, the father of the deceased and PW4- Pravin Kumar, the

brother of the deceased. Unfortunately, both the father and the

brother did not support the prosecution and they were declared

hostile. Admittedly, nothing could be brought on record in their

cross-examination conducted by the public prosecutor for the

benefit of the prosecution.

2. With the assistance of the learned counsel appearing for the

appellant, we have perused the evidence of prosecution-witnesses,

relevant documents and the dying declaration. The main submission

of the learned counsel for the appellant is that there is a serious

doubt about the correctness of the dying declaration. Another

submission is that Bhavna, the sister of the deceased was a very

important witness, who has been withheld by the prosecution. The

submissions made by the learned counsel appearing for the

respondent is that PW-3, who recorded the dying declaration was an

Executive Magistrate who had no enmity with the present appellant

and, therefore, there is no reason to disbelieve his testimony. Her

submission is that though the dying declaration may not bear an

endorsement of the doctor recording the fitness of the deceased to

make a statement, on the Yadi forwarded by the police, the doctor

had certified her fitness.

3. As stated earlier, the evidences of PW-1 and PW-4, the father

and brother of the deceased do not help the prosecution as they did

not support the prosecution. Now, what remains is that the dying

declaration. If the conviction is to be based only on the dying

declaration, necessarily, it must be of an unimpeachable quality. 3

Before we go into the issue of the doubts expressed by the learned

counsel appearing for the appellant about the dying declaration, it

is necessary to make a reference to what the deceased purportedly

stated in her dying declaration. Answers to question Nos. 6 and 7

are most material which read thus: -

“6. What is done to you?

Answer : Today at 7.00 p.m. I was prepared dinner. When

my sister came at my house at that time, my mother-in-

law was quarrelling with me. My husband had given 2-3

sticks blows to me and due to unbearable pain; I poured

kerosene on my body and put fire myself. My sister

Bhavna was came to meet me.

7. How this incident happened?

Answer : That quarrel took place alternatively with my

mother-in-law and due to this incident took place.”

4. On a conjoint reading of answers given to question Nos. 6

and 7, assuming that what is stated therein is correct, we find

that according to the deceased, it was the conduct of the mother-

in-law, which prompted her to take the extreme step. It is pointed

out that initially the mother-in-law was made an accused but she

died. Taking the allegation made by way of answer to question No. 6

against the appellant-husband as correct, it is not sufficient to

come to the conclusion that the act done by the husband was the

cause for immediate instigation to the deceased to take the extreme

step of burning herself.

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5. What is most important is that Bhavna, the sister of the

deceased was present when the alleged act of mother-in-law

quarreling with the deceased and her husband giving two or three

stick blows to the deceased took place. The prosecution has not

explained why the evidence of this material witness was withheld

from the Court. This is one reason for drawing an adverse inference

against the prosecution.

6. There are other factors on the basis which we can say that the

dying declaration is not free from a serious doubt. The said

reasons are as under:-

(i) The dying declaration itself does not bear the endorsement of

the doctor regarding the fitness of the deceased to make a

statement;

(ii) A panchnama (Exhibit ‘29’) was recorded around 10:10 P.M. on

31.07.1994, which records that the deceased was barely able to tell

her name and she stated that she could not speak. The alleged dying

declaration was recorded between 09:45 P.M. to 10:00 P.M.;

(iii) Even the police personnel, who recorded the panchnama has

stated that the deceased was not in a position to speak; and

(iv) PW5 - Dr. Rajendra, who examined the deceased stated in the

cross-examination that when he asked the deceased about the cause

of burn injuries, she disclosed that she poured kerosene on

herself. But she gave no reason why she did the act.

7. These factors taken together create a serious doubt about the

correctness of the dying declaration. Therefore, the dying

declaration will have to be kept out of consideration. In any case, 5

the dying declaration is not of that sterling quality on which the

conviction can be based in absence of any other evidence.

Therefore, the prosecution has failed to prove the guilt of the

appellant beyond a reasonable doubt. The appeal succeeds and the

impugned orders are quashed and set aside. The appellant is

acquitted.

8. As the appellant is on bail, his bail bond stands cancelled.

9. The appeal is, accordingly, allowed on above terms.

10. Pending application(s), if any, shall stand disposed of.

…………………………...J. [ABHAY S. OKA]

…………………………...J. [PANKAJ MITHAL]

NEW DELHI;

NOVEMBER 02, 2023.