Hasmukh Devji Khavasa v. STATE — 1996 DIGILAW 589 (GUJ)

A. N. DIVECHA, J. ( 1 ) THE original accused has invoked the appellate jurisdiction of this court under "sec. 374 of the Code of Criminal Procedure, 1973 (the Crpc for brief) for questioning the correctness of the judgment and order of conviction passed by the learned additional Sessions Judge of Rajkot on 15th January 1993 in Sessions Case No. 80 of 1991. Thereby the learned trial Judge convicted the appellant herein of the offences punishable under sections 376, 306 and 452 of the Indian Penal Code, 1860 (the IPC for brief) and sentenced him to rigorous imprisonment for 7 years and fine of Rs. 200 in default simple inprisonment for one month for the offence punishable under Sec. 376 thereof and rigorous imprisonment for 5 years and fine of Rs. 200 in default simple imprisonment for one month for the offence punishable under Sec. 306 thereof without passing any sentence for the offence punishable under Sec. 452. The learned trial Judge ordered all sentences to run concurrently. ( 2 ) THE facts giving rise to this appeal move in a narrow compass. The entire case centres round one girl, named, Meena. She was about 17 years and 2 months old at the relevant time as transpiring from her school leaving certificate at Ex. 92 on the record of the case. . her birth-date as recorded therein is 6th December 1973. The incident giving rise to the criminal proceeding and this appeal is stated to have occurred on 9th February 1991 at about 4. 55 p. m. It is the case of the prosecution that at that time she was practically alone in her house listening to some film songs on a tape recorder. Her younger sister, named, Sonal, was playing just nearby. At that stage, the appellant-accused was stated to have visited her house, dragged her inside the room and ravished her. Thereafter he is stated to have poured kerosene on her body and fled from the scene. Thereafter she is stated to have set herself to fire. Her father was informed of the incident at the place of his work. He ran down to his home. She is reported to have told him about the incident and having set herself ablaze out of fear. She was carried to government Hospital at Rajkot for examination and treatment. She was found to have received burns of the first degree. Her father was informed of the incident at the place of his work. He ran down to his home. She is reported to have told him about the incident and having set herself ablaze out of fear. She was carried to government Hospital at Rajkot for examination and treatment. She was found to have received burns of the first degree. She was first examined at about 5. 55 p. m. by the medical Officer at the relevant time. She was then admitted as an indoor patient at about 6 p. m. There is a police chowki known as the hospital police chowki in the compound of the Government Hospital at Rajkot. The Police Constable of the hospital police chowki was informed of the incident. He appears to have approached the patient. He took down whatever he gathered from the patient in his police chowki register. He passed on the information to the City c Division Police Station at Rajkot. That was taken down in the station diary. The case was handed over to Police Sub-Inspector Shri Pathan for investigation. He recorded the complaint of the patient. He arranged for recording of her dying declaration. The Executive Magistrate recorded her dying declaration at about 8. 45 p. m. on that day. She is stated to have breathed her last at about 10. 25 p. m. on that very day. Her post-mortem was conducted. In the meantime a copy of the first information report was filed in the court of the Chief Judicial Magistrate at Rajkot on 10th February 1991. On completion of the investigation, the necessary charge-sheet was submitted in the court of the Chief Judicial Magistrate at Rajkot on 7th May 1991 charging the appellant-accused with the offences punishable under Secs. 307, 452 and 376 and 306 of the IPC. It came to be registered as Criminal Case No. 2121 of 1991. Since the offences mentioned in the charge-sheet were triable by the court of sessions, the learned Chief judicial Magistrate committed the case to the Sessions Court at Rajkot for trial by his order passed, on 21st May 1991. It came to be registered as Sessions Case No. 80 of 1991. It appears to have been assigned to the learned Additional Sessions Judge at Rajkot for trial. The charge against the accused was framed on 7th August 1992 at Ex. 1 on the record of the trial court. It came to be registered as Sessions Case No. 80 of 1991. It appears to have been assigned to the learned Additional Sessions Judge at Rajkot for trial. The charge against the accused was framed on 7th August 1992 at Ex. 1 on the record of the trial court. He did not plead guilty to the charge. He was thereupon tried. After recording the prosecution evidence and after recording the further statement of the appellant- accused under Sec. 313 of the Criminal Procedure Code and after hearing the arguments, by his judgment and order passed on 15th Januay 1993 in Sessions Case No. 80 of 1991, the learned Additional Sessions Judge convicted the appellant-accused of the offences punishable under Secs. 376, 306 and 452 of the Indian Penal Code and sentenced him to rigorous imprisonment for 7 years and fine of Rs. 200 in default simple imprisonment for one month for the offence punishable under Sec. 376 thereof and rigorous imprisonment for 5 years and fine of Rs. 200 in default simple imprisonment for one month for the offence punishable under section 306 thereof. No separate sentence for the offence punishable Sec. 452 thereof was passed. The learned trial Judge ordered all the sentences to currently. The learned trial Judge acquitted the appellant herein of the offence punishable under Sec. 307 of the Indian Penal Code. The judgment and order of conviction and sentence aggrieved the appellant-accused. He has therefore invoked the appellate jurisdiction of this court under Sec. 374 of the Criminal Procedure code for questioning the correctness of his conviction and sentence by the learned trial judge. ( 3 ) IT appears that the prosecution agency was aggrieved by the order of acquittal of the appellant-accused qua the offence punishable under Sec. 307 of the Indian Penal code. The prosecution agency was also dissatisfied with the inadequacy of the sentence imposed on the appellant-accused. It therefore preferred Criminal Appeal No. 551 of 1993 challenging the inadequacy of the sentence imposed on the accused under Sec. 377 of the crpc and filed Criminal Appeal No. 552 of 1993 questioning the correctness of the acquittal of the appellant-accused of the offence punishable under Sec. 307 of the IPC under Sec. 378 of the Crpc Both the appeals came to be summarily dismissed by the division Bench of this court on 27th December 1993. ( 4 ) LEARNED Advocate Shri Lakhani for the appellant-accused has taken me through the entire evidence on record in support of his submission that the learned trial Judge ought not to have relied on any of the dying declarations in view of inconsistencies galore found therein. It has been urged by learned advocate Shri Lakhani for the appellant-accused that the learned trial Judge ought to have come to the conclusion that the prosecution failed to establish the guilt of the appellant-accused at trial beyond any reasonable doubt. As against this, learned Additional Public Prosecutor Shri Bukhari for the respondent-State has submitted that the learned trial Judge has carefully scanned and scrutinized the evidence on record and has recorded the finding of guilt against the appellant-accused, and as such the impugned judgment and order of conviction calls for no interference by this court in this appeal at the instance of the appellant-accused. ( 5 ) IT transpires from the judgment of the learned trial Judge that the appellant-accuscd has been convicted on the strength of certain dying declarations made by the deceased girl prior to her death. It may be noted that the learned trial Judge did find inconsistencies in her dying declarations. Overlooking inconsistencies, the learned trial Judge has relied on the consistent version stated to be appearing in all the dying declarations. This approach on the part of the learned trial Judge has severely been criticised by learned advocate Shri lakhani for the appellant-accused and fully supported by learned Additional Public prosecutor Shri Bukhari at the time of hearing. ( 6 ) IT would be quite necessary at this stage to look at broad features of the case. The father of the girl, named, Bachubhai Ramdulari Sharma, has been examined as prosecution witness No. 3 at Ex. 20. As transpiring from his evidence at the relevant time, he had 7 children living at that time. Meena was his third child. His children included 4 sons and 3 daughters. The name of his eldest son is Rajesh. He was about 22 years at the relevant time. His fifth child was one Sonal. She was aged about 10 years at the relevant time. He has also stated in his evidence that his brother Rajendra was residing with him. His brother Rajendra had 3 sons. His another brother, named, Rajbali, was residing separately and he had one son. He was about 22 years at the relevant time. His fifth child was one Sonal. She was aged about 10 years at the relevant time. He has also stated in his evidence that his brother Rajendra was residing with him. His brother Rajendra had 3 sons. His another brother, named, Rajbali, was residing separately and he had one son. There was no one in the family by the name of Suresh. 23. 10. 1996 ( 7 ) AS aforesaid, the incident occurred on 9th February 1991. There was no one in the house except two sisters, namely, the deceased and Sonal though as many as 14 persons were residing in the house. There is no material on record to show or to suggest why 12 out of 14 persons in the family were required to go out leaving in the house one teenage girl and another girl of hardly 10 years in age. For mysterious reasons the prosecution agency has chosen to keep quiet on this. It may be mentioned at this stage that the father of the deceased girl was stated to be a businessman. He had his own small factory. He had gone there. As transpiring from the oral testimony of the father at Ex. 20, his wife had gone for shopping at the relevant time. Whereabouts of other members in the family in all numbering 10 at the relevant time have not come on record. ( 8 ) COMING back to the narration, the deceased girl and her younger sister, named, sonal, about 10 years old at the relevant time, were the only persons present in the house. It may be mentioned at this stage that the family of the deceased girl was residing in street No. 2 of Amernagar in Rajkot. The appellant- accused is also stated to be residing in the neighbourhood in Amarnagar itself. According to the prosecution version, the appellant-accused had gone to the House of the deceased about 10-15 minutes prior to the incident in question but had not entered the house as the deceased girl was in the company of another girl, named Haki. The latter was presumably residing in the neighbourhood. It does not become clear from the record whether or not the statement of that Haki was recorded by the police in the course of investigation. The latter was presumably residing in the neighbourhood. It does not become clear from the record whether or not the statement of that Haki was recorded by the police in the course of investigation. The appellant-accused is stated to have gone to the house of the deceased about 10-15 minutes later. The tape recorder in her hand was on. According to Sonal, the child witness at Ex. 24 on the record of the trial, he dragged the deceased girl inside the room. The younger sister later on found her sister burning. The prosecution version at this juncture is that the father of the deceased girl received a telephonic message at his place of work and he immediately rushed to his house. He found the deceased girl in a burnt condition. On inquiry, she told him that she was ravished by the appellant- accused and he sprinkled Kerosene on her. According to the fathers oral testimony at Ex. 20, this conversation could not last longer on arrival of the ambulance at the house. This can be said to be the first dying declaration of the deceased. ( 9 ) LEARNED Advocate Shri Lakhani for the appellant-accused has submitted that this cannot be regarded as a dying declaration within the meaning of Sec. 32 (1) of the Indian evidence Act, 1872 (the Act for brief ). I think it is not necessary to decide that question. For the time being I assume it to be her dying declaration within the meaning of Sec. 32 (1) of the Act. The question is whether this dying declaration is proved, beyond reasonable doubt. It has come on record through the oral testimony of the investigating officer examined as prosecution witness No. 14 at Ex. 72 that the so-called dying declaration of the deceased girl did not become part of the police statement of her father. In other words, in his police statement the father did not refer to what she told him on his reaching home after receiving the telephonic message and on his inquiry with her as to the incident in question. It would pass comprehension as to how such an important statement would not figure in the police statement of the father of the deceased girl. That circumstance by itself would cast a spell of doubt on the veracity of the so-called dying declaration. It would pass comprehension as to how such an important statement would not figure in the police statement of the father of the deceased girl. That circumstance by itself would cast a spell of doubt on the veracity of the so-called dying declaration. ( 10 ) COMING back to the prosecution story, the deceased girl was carried to government Hospital at Rajkot. On reaching hospital, it appears that she was examined by some-medical officer at about 5. 55 p. m. The case papers in that regard are at Ex. 34 on the record of the trial court. Therein is mentioned the history of the incident to be that of accidental burns on that very day. Apart from the unexplained discrepancy how case number came to be corrected from 5433 to 5568, the medical officer examining the patient and noting the history of the case in the case papers at Ex. 34 has not been examined at trial for the reasons best known to the prosecution. This history of accidental burns recorded by the medical officer in the case paper at Ex. 34 would, also constitute her dying declaration. The learned trial Judge appears to have ignored it. ( 11 ) IT appears that the medical officer examining her at 5. 55 p. m. directed her admission in the burns ward of the hospital. It appears that soon thereafter at about 6 p. m. she was admitted in the Burns Ward. The case papers in that regard are at Ex. 35. In the said case papers is also mentioned the history of accidental burns on that very day, that is, on 9th February 1991. The medical officer writing this history of the case has not been examined at trial again for the reasons best known to the prosecution. This case history recorded in the case papers at Ex. 35 would also become her dying declaration. The learned trial Judge again appears to have ignored this dying declaration. ( 12 ) LEARNED Additional Public Prosecutor Shri Bukhari for the respondent-State has submitted that it is not known who gave the history of the accidental burns to the medical officer and who noted the history of the case in the case papers at Ex. 34 and 35 on the record of the trial court. ( 12 ) LEARNED Additional Public Prosecutor Shri Bukhari for the respondent-State has submitted that it is not known who gave the history of the accidental burns to the medical officer and who noted the history of the case in the case papers at Ex. 34 and 35 on the record of the trial court. It needs no telling that it is for the prosecution to bring the material on record as to how this history of the case came to be recorded in her aforesaid case papers. It is possible that the history of the case might have been given by the deceased victim herself or by the persons or any of them responsible for carrying her to hospital. The possibility of her giving history at the relevant time cannot altogether be ruled out if we go by the prosecution version that she was in a fit state of mind for giving her dying declaration as certified by Dr. Ajmera at 6. 40 p. m. in the police yadi for recording her dying declaration at Ex. 55 on the record of the trial court. In that view of the matter, even at the cost of repetition, it may be reiterated that the history of the case as recorded in the case papers at Exs. 34 and 35 regarding accidental burns was given by the deceased girl herself and it was noted therein at the time of her examination by the medical officer and by no one else. In any case, such history given by the deceased would constitute her dying declaration and that dying declaration is inconsistent with the other so called dying declarations on the record of the case. ( 13 ) AS aforesaid, in the Government Hospital at Rajkot is situated the Hospital Police chowki. It appears that the medical officer examining the deceased girl found it to be a medico-legal case though it was the case of accidental burns. One. police constable, named, Anilbhai Mavjibhai, from the Hospital Police Chowki, examined as prosecution witness No. 12 at Ex. 61 on the record of the trial court, is stated to have approached the patient and he is stated to have collected the history of the incident at about 6. 05 p. m. He is then stated to have made an entry in the police chowki register on that very day as entry No. 8. 61 on the record of the trial court, is stated to have approached the patient and he is stated to have collected the history of the incident at about 6. 05 p. m. He is then stated to have made an entry in the police chowki register on that very day as entry No. 8. Its copy is at Ex. 62 on the record of the case. Therein she is reported to have stated that, while she was alone in the house, the appellant accused ravished her and she herself poured Kerosene on her body and set herself to fire on account of loss of honour in that fashion. This is also treated as a dying declaration by the learned trial judge. ( 14 ) LEARNED Advocate shri Lakhani for the appellant-accused has submitted that the entire statement as found recorded in the entry at Ex. 62 on the record of the trial court cannot be treated as a dying declaration within the meaning of section 32 (1) of the Act. It is not necessary to decide that question at this stage. Even assuming for the sake of argument that it is one more dying declaration of the deceased within the meaning of the aforesaid statutory provision, the question of its credibility would certainly arise. It certainly runs counter to what is recorded in the medical case papers at Exs. 34 and 35 on the record of the trial court. In the entry at Ex. 62 sufficient details about herself and the appellant-accused are found mentioned. If it was possible for her to give these many details to the police constable of the Hospital Police Chowki at Ex. 61, she could have given these very details to the medical officer examining her and recording her case history in the case papers at Exs. 34 and 35 on the record of the case. It may again be noted that the case papers at Ex. 34 on the record of the trial court were prepared at 5. 55 p. m. and the case papers at Ex. 35 on the record of the trial court were prepared at 6 p. m. on 9th February 1991 and the entry at Ex. 62 on the record of the trial court is stated to have been made at 6. 05 p. m. There is not much time-lag between any two of the aforesaid documents. 35 on the record of the trial court were prepared at 6 p. m. on 9th February 1991 and the entry at Ex. 62 on the record of the trial court is stated to have been made at 6. 05 p. m. There is not much time-lag between any two of the aforesaid documents. In the course of 10 minutes, there could not be practically somersault of the oral history given by the deceased girl to the medical officers on two occasions. The learned trial Judge, with respect, appears to have overlooked this glaring discrepancy and inconsistency staring the court in its face. The veracity of the entry at Ex. 62 would certainly create a doubt qua the history of the case recorded in the medical case papers at exs. 34 and 35 on the record of the case. The so called dying declaration found in the entry at Ex. 62 on the record of the case would thus pale into insignificance. In any case, it can be said to be shrouded in mystery. ( 15 ) ANOTHER so called dying declaration of the deceased is her complaint at Ex. 73 on the record of the case. It was recorded by the investigating officer examined as prosecution witness No. 14 at Ex. 72. It was stated to have been recorded by him at about 6. 40 p. m. on that very day, that is, on 9th February 1991. Ordinarily, the time of recording the complaint ought to appear in the complaint itself. For mysterious reasons, nowhere is recorded in the complaint at Ex. 73 the time of commencement of its recording and the time of its completion. It is not necessary to highlight this omission at this stage. It transpires from the complaint at Ex. 73 that the appellant-accused visited the house of the deceased while she was in the company of her neighbour Hakiben and he therefore went away. It is stated in the aforesaid complaint that he again visited her house about 10 minutes later. According to her in her aforesaid complaint, she was sitting in the office room in the house and he took her in his arms. She thereupon ran inside a room. He followed her, closed the door and satisfied his lust against her will. It is stated in the aforesaid complaint that he again visited her house about 10 minutes later. According to her in her aforesaid complaint, she was sitting in the office room in the house and he took her in his arms. She thereupon ran inside a room. He followed her, closed the door and satisfied his lust against her will. She was further stated in her complaint that she screamed and shouted at that time but he put his hand on her mouth so that her screams and shouts would not come out. It has been further mentioned therein that her younger sister remained seated all throughout in the verandah. Then she has stated in her complaint that there was a Kerosene tin below the cot and he sprinkled Kerosene on her body from that Kerosene tin and went away. A little later, according to her in her complaint, she set herself ablaze. It has further been stated in the complaint that she was severely burnt and then she ran outside the room and her shouts gathered people at the relevant time. The complaint at Ex. 73 on the record of the case is quite in detail. It gives all necessary particulars of the incident. Again, it runs counter to what she appears to have stated to the medical officers examining her as recorded in the medical case papers at Exs. 34 and 35 on the record of the trial court. With respect, the learned trial Judge appears to have overlooked this discrepancy and inconsistency appearing in the complaint at Ex. 73 on the record of the trial court qua the history of the case recorded in the medical case papers at Exs. 34 and 35 on record. ( 16 ) I agree with learned Additional Public Prosecutor Shri Bukhari for the respondent-State that there is no prohibition in law against recording of a dying declaration by a police official or officer in the course of investigation. The dying declaration even if it is recorded by a police official or officer can be the sole basis of conviction if it is found to be truthful and trustworthy in view of the binding ruling of the Supreme Court in the case of Dalbir Singh and Ors vs. State of Punjab, reported in air 1987 SC 1328 as relied on by learned Additional Public Prosecutor Shri Bukhari for the respondent-State. As transpiring from her inconsistent statements recorded in her medical case papers at Exs. 34 and 35 on the record of the trial court, the so called dying declaration at Ex. 73 would be far from being trustworthy and truthful. Its credibility cannot be said to be beyond doubt. ( 17 ) AGAIN, it transpires from the evidence of the deceased girls father at Ex. 20 that he was all throughout present while the investigating officer at Ex. 72 recorded her complaint at Ex. 73. In that case, the so-called dying declaration in the form of the complaint at Ex. 73 on the record of the case can be said to be tainted with tutoring. It would be difficult to rely on such a tutored dying declaration. ( 18 ) BESIDES, the complaint at Ex. 73 on the record of the case appears to be an improvement over her statement appearing in the entry at Ex. 62 on record. Even at the cost of repetition, it may be reiterated that in the entry at Ex. 62 on the record of the case she has stated that she herself sprinkled Kerosene on her body and set herself to fire whereas in the complaint at Ex. 73 on the record of the case she has attributed the act of sprinkling of Kerosene on her body to the appellant-accused. This inconsistency in her two versions as recorded in the entry at Ex. 62 and in her complaint at Ex. 73 on the record of the case is too glaring to be ignored or overlooked. The learned trial Judge appears to have missed this glaring discrepancy apparent on the face of the record. ( 19 ) AT this stage it would be quite proper to look at the police yadi at Ex. 55 on the record of the case for recording her dying declaration by the Executive Magistrate. As pointed out hereinabove, Dr. Ajmera has certified her to be in a conscious state of health and fit for recording her dying declaration at 6. 40 p. m. Therein is inter alia mentioned that she herself sprinkled Kerosene on her body and she set herself aflame. In a way it was a case of self-immolation on account of her alleged loss of honour. The complaint at Ex. 73 on the record of the case was taken down at 6. 40 p. m. Therein is inter alia mentioned that she herself sprinkled Kerosene on her body and she set herself aflame. In a way it was a case of self-immolation on account of her alleged loss of honour. The complaint at Ex. 73 on the record of the case was taken down at 6. 40 p. m. as transpiring from the oral testimony of the investigating officer at Ex. 72 on the record of the case. He has stated that he thereafter arranged for recording of her dying declaration. If that be so, how the version regarding sprinkling of Kerosene by the appellant-accused as recorded in the complaint at Ex. 73 on the record of the case changed to sprinkling of Kerosene by herself in the police yadi for recording her dying declaration at Ex. 62 on the record of the case. For reasons best known to the prosecution, no attempt is made to explain this glaring discrepancy appearing on record. The learned trial Judge, with respect, also appears to have missed to notice this glaring discrepancy on record staring the court in its face. ( 20 ) AT this stage also deserves a reference to be made to the oral testimony of the investigating officer at Ex. 72 on the record of the case. After recording the complaint at ex. 73 on the record of the case, he appears to have arranged for her medical examination for the purpose of ascertaining whether or not she was subjected to rape as stated by her in her complaint. He is stated to have therefore sent one communication at about 7 p. m. , to the medical officer of the Government Hospital at Rajkot for arranging for her medical examination for the purpose. It is at Ex. 74 on the record of the case. Therein also it is mentioned that she herself sprinkled Kerosene on her body and set herself aflame. The version regarding sprinkling of Kerosene on her body by herself runs counter to what she is stated to have said in her complaint at Ex. 73 on the record of the case. In her aforesaid complaint she has unequivocally attributed the act of sprinkling of Kerosene on her body to the appellant-accused. The investigating officer at Ex. The version regarding sprinkling of Kerosene on her body by herself runs counter to what she is stated to have said in her complaint at Ex. 73 on the record of the case. In her aforesaid complaint she has unequivocally attributed the act of sprinkling of Kerosene on her body to the appellant-accused. The investigating officer at Ex. 72 has not chosen to explain how he managed to write the act of sprinkling of Kerosene on her body by herself in the communication at Ex. 74 on the record of the case in the wake of the contrary statement appearing in the complaint at Ex. 73 on record. With respect, the learned trial Judge appears to have overlooked this glaring discrepancy and inconsistency appearing on record. It may be noted at this stage that the communication, at Ex. 74 on the record of the case was written soon after the recording of the complaint at Ex. 73 on record was over. The aforesaid glaring discrepancy and inconsistency would assume importance keeping in mind this time factor. . ( 21 ) AT this stage also deserves a reference to be made to the entry made in the miscellaneous Information Register maintained in the c Division Police Station in the city of Rajkot. That entry is at Ex. 46 on the record of the case. The Hospital Police chowki constable recording the entry at Ex. 62 on the record of the case appears to have transmitted that information to the c Division Police Station in the city of Rajkot and it was taken down in the Miscellaneous Information Register thereat. A copy of that entry is at Ex. 46. It is practically in the same terms as found in the entry at Ex. 62 on the record of the case. Again the act of sprinkling of Kerosene on her body is attributed to her ownself and none else. ( 22 ) THAT brings me to the so-called dying declaration recorded by the Executive magistrate pursuant to the police yadi at Ex. 55 on the record of the case. That dying declaration is at Ex. 56 on the record of the case. It is proved by the Executive magistrate, named, Rajmal Bhagwanji, examined as prosecution witness No. 10 at Ex. 54, on the record of the case. It transpires from his oral testimony that he received the police yadi at Ex. 55 on the record of the case. That dying declaration is at Ex. 56 on the record of the case. It is proved by the Executive magistrate, named, Rajmal Bhagwanji, examined as prosecution witness No. 10 at Ex. 54, on the record of the case. It transpires from his oral testimony that he received the police yadi at Ex. 55 on the record of the case at about 8. 25 p. m. on that very day on 9th february 1991. He is stated to have reached the hospital soon thereafter and after ascertaining the fit state of health of the deceased girl he began recording of the dying declaration at about 8. 45 p. m. His recording thereof was over at 8. 55 p. m. One Dr. D. M. Patel certified that the patient had throughout remained conscious. ( 23 ) BEFORE examining the contensts of the so called dying declaration at Ex. 56 on the record of the case, it would be quite proper to look at the medical case papers once again. As pointed out hereinabove, at Ex. 35 are the medical case papers of the deceased girl as an indoor patient. It appears that it has continuation with the case papers at Ex. 68 on the record of the case as prepared by Dr. Dayam Jasdanwala, prosecution witness No. 2 at Ex. 12 on the record of the case. She was responsible for examining the deceased girl for the purpose of ascertaining whether or not she was subjected to ravishment as stated by her in her complaint. She is stated to have examined her at about 7. 30 p. m. It is not necessary to refer to the contents of her finding at this stage. The case papers at Ex. 68 on record further show that at 8. 55 p. m. she was found to be drowsy as recorded therein. It does not become clear from the material on record who examined her at about 8. 55 p. m. and who found her in the state- of drowsiness at that time. The medical officer examining her at 8. 55 p. m. on that day has not been examined at trial. In view of this state of her health, she would not be fully conscious at the time of recording of her dying declaration. The certificate issued by Dr. The medical officer examining her at 8. 55 p. m. on that day has not been examined at trial. In view of this state of her health, she would not be fully conscious at the time of recording of her dying declaration. The certificate issued by Dr. D. M. Patel that the patient was conscious all throughout in the dying declaration at Ex. 56 would then be a doubtful proposition. If she was in the drowsy state of her health, it is obvious that she would not be in a fit state of mind to give her dying declaration. She could not be said to be in a fully conscious state. The contrary certificate stated to have been issued by Dr. D. M. Patel in the dying declaration about her state of consciousness is not absolutely free from doubt. ( 24 ) THAT should bring me to the contents of the dying declaration at Ex. 56 on the record of the case. It is not recorded in any question-answer form. I agree with learned additional Public Prosecutor Shri Bukhari for the respondent- State that the recording of a dying declaration in a narration form would not lose its credibility one on that account. It however makes some strange reading. She is reported to have stated in her dying declaration that, after ravishing her, the appellant-accused sprinkled Kerosene on her and then she set herself to fire and at that time he ran away. The stranger part mentioned therein is that she is stated to have told the Executive Magistrate at that time that she did not know the appellant-accused and she had no relations with him. Strangely enough, she had given the name of the appellant-accused in her dying declaration. If she did not know him, how she could give his name in the dying declaration is anybodys guess. She has then further stated that he wanted to meet her but she showed no willingness for the purpose. This statement of hers appearing in the dying declaration at Ex. 56 on the record of the case runs counter to her earlier statement that she did not know him. She has then further stated that he was drunk. This part of her statement does not figure in her complaint at Ex. 73 on the record of the case. She has then stated that at the time of ravishment she was shouting. She has then further stated that he was drunk. This part of her statement does not figure in her complaint at Ex. 73 on the record of the case. She has then stated that at the time of ravishment she was shouting. It appears that some interpolation has taken place thereafter in her statement to the effect that he shut her mouth by his hand. That statement appears to have been added in the dying declaration. One more feature appearing in the aforesaid dying declaration is that her elder brother Rajesh arrived in the house at that time and other women also gathered together. Arrival of her brother Rajesh in the house at the relevant time, is not found mentioned in the complaint at Ex. 73 on the record of the case. If we go by what she has stated in her dying declaration at Ex. 56 on the record of the case, her brother was the first person to see her soon after occurrence of the incident in question. He has not been examined at trial for the reasons best known to the prosecution. It has not come on record what transpired between the brother and the sister at the relevant time, He would have been the best person to throw light as to what transpired between the appellant-accused and the deceased girl at the relevant time. It transpires from the oral testimony of the investigating officer at Ex. 72 on the record of the case that the statement of her brother rajesh was recorded. He has been withheld from the court as a witness. An adverse inference will have therefore to be raised in view of Sec. 114 of the Act to the effect that he would not have supported the prosecution version if he was examined at trial. With respect, this aspect of the case has been ignored and overlooked by the learned trial Judge. ( 25 ) IN view of my aforesaid discussion, I am of the opinion that no dying declaration of the deceased girl is found reliable, trustworthy or truthful. Their credibility is not beyond question. The appellant-accused could not have been convicted on the strength of such dying declarations. ( 26 ) AT this stage certain important features also deserve notice. As transpiring from her post-mortem report at Ex. Their credibility is not beyond question. The appellant-accused could not have been convicted on the strength of such dying declarations. ( 26 ) AT this stage certain important features also deserve notice. As transpiring from her post-mortem report at Ex. 31 on the record of the case, the name of "suresh" was found tattooed on her right hand. As transpiring from the testimony of her father at Ex. 20, there was no person by the name of suresh in the entire family. As transpiring from his further testimony, the deceased had four brothers and three male cousins residing together not to mention one more residing away from the family. It is strange and surprising that the prosecution has not explained how the name of "suresh" was found in her right hand as a tattoo. ( 27 ) ANOTHER important feature to be noted in this case is the medical report about the examination of the girl by Dr. Dayam Jasdanwala at Ex. 12 on the record of the case. The witness at Ex. 12 has found her to be habituated with sexual intercourse. She has clearly stated that there were no signs of recent sexual intercourse at the relevant time. ( 28 ) ANOTHER noteworthy feature in the case is not a whisper by Dr. Ajmera examined as prosecution witness No. 1 at Ex. 9 on the record of the case about his having examined the deceased girl at any point of time though his notings are found in the medical case papers at Ex. 35 on the record of the case. He is responsible for the certification about her fit state of health for recording her dying declaration as traspiring from the police yadi for the purpose at Ex. 55 on the record of the case. He has kept mysteriously quiet as to this aspect of the matter in his oral testimony at Ex. 9 on the record of the case. He has been examined only for the purpose of medical examination of the appellant-accused on 10th february 1991. The certificate of his examination of the appellant-accused is at Ex. 10 on the record of the case. Why Dr. Ajmera did not refer to any condition of the deceased girls health at the relevant time is anybodys guess. ( 29 ) ANOTHER notable feature in this case is mention of one girl Haki in the complaint at Ex. 73. The certificate of his examination of the appellant-accused is at Ex. 10 on the record of the case. Why Dr. Ajmera did not refer to any condition of the deceased girls health at the relevant time is anybodys guess. ( 29 ) ANOTHER notable feature in this case is mention of one girl Haki in the complaint at Ex. 73. The deceased girl has herself stated in her aforesaid complaint that the appellant-accused approached her house at about 4. 45 p. m. and went away when she was found in the company of said girl Haki. He is reported to have reappeared at her house 10 minutes later and did what gave rise to the present proceeding. That would give rise to a suspicion whether or not it was a pre-arranged meeting. The appellant-accused was residing in the neighbourhood in Amarnagar at the relevant time. He would not have known that the deceased girl was alone in her house at the relevant time except in the company of her younger sister aged about 10 unless he was so informed in advance. His going away during his first visit to the house on seeing the neighbouring girl by the name of Haki might itself be a suggestive fact. Anyway, this need not be highlighted at this stage as it is nobodys case. ( 30 ) THE learned Additional Public Prosecutor for the respondent- State has invited my attention to the oral testimony of the child witness by the name of Sonal at Ex. 24 on the record of the case in support of his submission that the conviction in this case deserves to be upheld. She was a child witness of about 11 years at the relevant time. Her evidence has not been recorded on oath as she was found not to understand the sanctity of oath in her preliminary inquiry in that regard. In fact, as transpiring from the preliminary inquiry in that regard, she even could not give the name of her school. In her cross-examination she was unable to give names of her classmates also. She could not give the name of her grandfather or those of her cousins though they were four in number. She could not give the name of her younger uncle either. She could not say the number of pupils in her classroom. She could not even say what a friend would mean. She could not give the name of her grandfather or those of her cousins though they were four in number. She could not give the name of her younger uncle either. She could not say the number of pupils in her classroom. She could not even say what a friend would mean. And yet she could name the appellant-accused and the police constable who took her to the Public Prosecutors office for the purpose of recording her deposition. This by itself would go to show and to suggest that she was a tutored witness. The prosecution has not been able to explain how she could remember these two names when she was unable to remember names of her dear and near ones like her grandfather, her uncle, her cousins or even her classmates. It would be absolutely unsafe to rely on the oral testimony of this child witness at Ex. 24 on the record of the case. With respect, the learned trial Judge has fallen into error in considering her oral testimony worthy of credence and credibility. ( 31 ) THE cumulative effect of my aforesaid discussion is that the prosecution has not been able to bring the guilt home to the accused beyond any reasonable doubt. The contrary conclusion reached by the learned trial Judge in his impugned judgment and order of conviction and sentence cannot be sustained in law. It has to be quashed and set aside. I am told that the appellant- accused is languishing in jail serving his sentence as imposed by the learned trial Judge. ( 32 ) IN the result, this appeal is accepted. The judgment and order of conviction passed by the learned Additional Sessions Judge at Rajkot on 15th January, 1993 in Sessions case No. 80 of 1991 is quashed and set aside. The appellant-accused is ordered to be released forthwith if no longer required in any other case. Direct service is permitted. .