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2020 DIGILAW 166 (GUJ)

State of Gujarat v. Ajaykumar Ramsingbhia Vasava

2020-01-27

R.M.CHHAYA, VIRESHKUMAR B.MAYANI

body2020
JUDGMENT : R. M. Chhaya, J. 1. This appeal is filed by the State under Section 378 of the Code of Criminal Procedure against the judgment and order of acquittal passed by the learned Additional Sessions Judge, Ahmedabad (Rural) in Sessions Case No. 206 of 1995 dated 16.10.1996 for the alleged offence under Sections 306, 376, 201 and 506 (2) of the Indian Penal Code and Section 135of the Bombay Police Act. 2. The appeal was admitted vide an order dated 29.04.1997. The record indicates that because of the change of advocate, the notice could not be served upon the respondent no.1, and hence, fresh notice was issued vide an order dated 22.08.2016. The record indicates that the said notice was served through the concerned Police Station. Though, served no one appears for the respondent – original accused, and hence, Mr. Ekant Ahuja, learned advocate is requested to appear for and on behalf of the undefended accused and Mr. Ekant Ahuja, learned Advocates Appeared is thus appointed as an advocate for the undefended and respondent accused under Rule 360 of the Gujarat High Court Rules, 1993. 3. It is the case of the prosecution that on 18.06.1995, at about 7.30 PM, the respondent under the pretext that his mother is sick, asked Nitaben Raisang to go to his house and prepare food. It is the case of the prosecution that the respondent took Nitaben to the bush located behind the Government Tubewell room and committed rape upon her and thereafter has committed offence under sections 376 of the IPC. It is further the case of the prosecution that on 18.06.1995, because of the forceful intercourse by the respondent accused upon Nitaben Raisang, she felt hurt and committed suicide and thereby it is alleged that respondent has committed offence under section 306 of IPC. The FIR came to be lodged with Dholka Police Station by Raisingbhai Mansingbhai Vasava. The respondent came to be arrested and ultimately, charge was framed for the offences under sections 376 and 306 of IPC at Exh.5, before the jurisdictional Magistrate against the accused person. As the case was exclusively triable by the Court of Sessions, learned Magistrate Court under Section 209 of the Cr.P.C. committed the said case to the Court of Additional Sessions Judge, Ahmedabad (Rural), Mirzapur, Ahmedabad, which came to be numbered as Sessions Case No.206 of 1995. As the case was exclusively triable by the Court of Sessions, learned Magistrate Court under Section 209 of the Cr.P.C. committed the said case to the Court of Additional Sessions Judge, Ahmedabad (Rural), Mirzapur, Ahmedabad, which came to be numbered as Sessions Case No.206 of 1995. Since, the accused did not plead guilty and claimed to be tried, he was tried for the charges levelled against him. 4. The prosecution relied upon and examined 9 prosecution witnesses and also relied upon documentary evidence such as Complaint, panchnama of the scene of occurrence (burning) at Exhibit 13, panchnama of the place where the rape was committed at exhibit 8, panchnama of the cloths of the respondent, inquest panchnama, PM Note at exhibit 11, injury certificate of the Doctor. 5. The learned Sessions Court after appreciating the evidence on record, came to the conclusion that the prosecution has not been able to prove the guilt of the accused and was pleased to pass the impugned judgment and order of acquittal. Being aggrieved by the same, the State has preferred this appeal as observed hereinabove. 6. Heard Mr. Hardik Soni, learned APP for the State and Mr. Ekant Ahuja, learned advocate for the respondent as appointed advocate under Rule 360 of the Gujarat High Court Rules, 1993. 7. Mr. Soni, learned APP has taken this Court through the oral evidence adduced by the prosecution, the FIR and other documentary evidence and has contended that the dying declaration of the deceased is sufficient to convict the respondent and the learned Sessions Judge has not properly appreciated the same. It was contended by the learned APP that the deceased has narrated the whole incident in the dying declaration which is wrongly appreciated by the learned Sessions Court and thus the Sessions Court has committed an error in passing the impugned judgment and order of acquittal. Mr. Soni contended that even as per the medical evidence, the cause of death was due to the burns which has direct correlation with the offence committed by the respondent under section 376 of the IPC. Mr. Soni contended that the learned Sessions Court has not given cogent reasons for not believing the dying declaration of the deceased, which was given before the Doctor of VS Hospital. According to Mr. Mr. Soni contended that the learned Sessions Court has not given cogent reasons for not believing the dying declaration of the deceased, which was given before the Doctor of VS Hospital. According to Mr. Soni, learned APP, the panchnama of the scene of offence where the rape was committed is proved by the prosecution beyond any doubt and in totality of the facts, the learned Sessions Court has committed error in wrongly appreciating the evidence on record and has committed an error in passing the impugned judgment and order of acquittal and therefore, the appeal deserves to be reversed and appropriate order of conviction and sentence be passed against the respondent. 8. Per contra, Mr. Ekant Ahuja, learned appointed advocate appearing for the respondent supported the impugned judgment and order of acquittal. Mr. Ahuja contended by that the learned Sessions Court has threadbare appreciated the evidence on record both oral and documentary and has rightly come to the conclusion that the dying declaration is not believable. Mr. Ahuja contended that the deposition of the complainant Raising Mansing Vasava, exhibit 9 clearly indicates that the deceased was unconscious when brought to V.S. Hospital and therefore, the learned Sessions Court has committed no error in disbelieving so called dying declaration. Mr. Ekant Ahuja submitted that in facts and evidence on record, the dying declaration at exhibit 25 is rightly not believed by the Sessions Court. It was contended by Mr. Ahuja that in facts of this case and on evidence on record, the absence of the fact that the deceased was conscious and in proper state of mind to give statement being absent, the so called dying declaration at exhibit 25 lacks credibility considering the fact that the deceased had 99% superficial burns and the Sessions Court has therefore rightly not believed the so called dying declaration. Relying upon the serological report, it was contended by Mr. Ahuja that even the vaginal smear taken by the police does not show presence of any semen and therefore, the prosecution has not been able to prove the allegation of rape and therefore, the very basis of allegation of offences committed under section 376 and 306 of the IPC is not proved by the prosecution and therefore, the learned Sessions Court has rightly pass the impugned judgment and order of acquittal, which does not require any interference. Mr. Mr. Ahuja contended that considering the evidence as a whole on record, the appeal being meritless, deserves to be dismissed. 9. No other or further contentions, submissions or grounds have been raised by the learned advocate appearing for the parties. 10. Before reverting to the submissions made, it would be appropriate to refer to the evidence on record. The prosecution has examined the complainant Raising Mansing Vasava, p.w.1 at exhibit 9. He has stated that the age of the deceased was 23 years on the date of occurrence. He has also stated that she was married and because of marital discord, she came back to her parental house and she was staying with the complainant. He has stated that on the date of the incident, he was not present at his house and was at Panchayat office as the elections were forthcoming. He has stated that at about 8.00 pm to 8.30 pm, as sound of “save me save me” were heard, he along with other persons ran to his house and found the deceased Nitaben burning. He has further stated that the door was open and the mother of the deceased put a small blanket over the deceased. He has further stated that they took deceased to village Saij and then to Santokba Hospital at Dholka and thereafter to VS Hospital at Ahmedabad. He has stated that as the Doctor gave treatment, the deceased gained consciousness and when he asked her, she informed the complainant that his cousin Ajay under the pretext of preparing rotis, took her at about 7.00 pm and he showed her knife and took her to the bushes behind the Government borewell and committed rape upon her and also threatened to kill her if she informs anybody and as she felt that she would be defamed in the society, sprinkled kerosene upon her and ignited herself. He has stated that the police took statement of the deceased and also took thumb mark of her leg. In his cross-examination, though he has denied certain suggestions made by the defence, he has admitted the fact that the police came immediately after the dead body of the deceased Nitaben was brought to his residence before the funeral. He has also admitted the fact that husband of the deceased Nita was of different caste. In his cross-examination, though he has denied certain suggestions made by the defence, he has admitted the fact that the police came immediately after the dead body of the deceased Nitaben was brought to his residence before the funeral. He has also admitted the fact that husband of the deceased Nita was of different caste. He has also admitted that since 1½ year, deceased Nita had not gone to her matrimonial house and there was ongoing dispute between the deceased and her husband. He has also stated that the inlaws of the deceased Nita had come to his place, however, no way out was found. He has stated further in cross-examination that many persons were there with him at the panchayat office as discussions for election were held. He has also stated that on hearing of shouts, other persons accompanied him to his residence. He has also stated that it too about 15 minutes to open the door where the deceased was burning. He as also admitted the fact that he had no talk with the deceased on opening of the door. He has admitted the fact that the deceased was burning completely and was not conscious. He has also admitted the fact that the deceased could not speak anything. He has further stated that distance from Andhari village to Saij village is about 3 kms and he had brought deceased to Dholka on tractor of one Chandubhai Chavda. He has also admitted the fact that meanwhile he did not talk with the deceased. He has also stated that the case was not taken by the Doctor of Santokba Hospital and in fact, the Doctor came outside to see the deceased. He has also stated that the Doctor did not make any noting. He has also stated that no medicine was given to the deceased at Dholka. He has stated that he had not talked with deceased Nitaben at Santokba Hospital as she was unconscious. Within 15 minutes, they hired a jeep from Dholka. He has further stated that he had no talk with the police on reaching VS Hospital. He has also stated that after reaching the ward, he did not give any details to the police. He has admitted the fact that after leaving village Andhari till VS Hospital, he had not informed the police about the incident. He has further stated that he had no talk with the police on reaching VS Hospital. He has also stated that after reaching the ward, he did not give any details to the police. He has admitted the fact that after leaving village Andhari till VS Hospital, he had not informed the police about the incident. He has stated that the staff of the hospital deported deceased Nitaben from the jeep. He has further stated that after registering the case, he was present at the ward with the deceased. He has also stated that treatment was given to deceased Nita, however, he was not aware as to what treatment was given. He has also admitted the fact that till deceased expired, he was present in the ward. He has in his cross-examination stated that about 2530 minutes before Nita expired, she became conscious. However he has denied the fact that Nita first talked to him on regaining consciousness. He has again stated that he had a talk with Nita on her gaining consciousness. He has further stated that when he was taking to deceased Nita, police took statement of the deceased Nita. He has also stated that when the police took statement of Nita, his sister-in-law Maniben Bhailal was present. He has stated that the police was present in the ward from the beginning. He has however denied the fact that police has recorded the statement on the basis of his talk with the deceased Nita. He has stated that the police has recorded the statement as narrated by Nita and that he was present at that time. He has denied certain suggestions made by the defence. However, he has admitted the fact that when the deceased was admitted to the burns ward, she was not in a position to sign with her hand and therefore, the police took thumb impression of her leg. He has denied the suggestion of the defence that deceased never regained consciousness and he has also denied certain suggestions made by the defence. 11. The prosecution has thereafter examined Dr. Dilip Manubhai Desai, p.w.2 at exhibit 10 who was Junior Lecturer in Forensic Medicine Department of V.S. Hospital and who performed postmortem of the deceased. He has narrated the injuries which are found during postmortem and the said witness has not been cross-examined by the defence. 12. 11. The prosecution has thereafter examined Dr. Dilip Manubhai Desai, p.w.2 at exhibit 10 who was Junior Lecturer in Forensic Medicine Department of V.S. Hospital and who performed postmortem of the deceased. He has narrated the injuries which are found during postmortem and the said witness has not been cross-examined by the defence. 12. The prosecution has also examined Mahendrabhai Dipsinhbhai, p.w.3 at exhibit 12 who happens to be the panch witness for the scene of occurrence (burning). 13. The prosecution has thereafter relied upon the deposition of Jayantibhai Bhailalbhai Vasava, p.w.4 at exhibit Exhibit 14. The said witness has stated that he is nephew of the complainant Raisingbhai, p.w.1. He has narrated in his examination-in-chief about the hearing of shout coming from house of Raisingbhai, p.w.1 and found deceased burning. He has also stated that they broke open the door and put a small blanket over the deceased. He has also stated that the deceased was taken to Saij and then to Dholka and then to V.S. Hospital. He has also stated that he accompanied deceased to Ahmedabad and he has also stated that the deceased was admitted to V.S. Hospital for treatment. He has stated that deceased informed that his cousin Ajay has committed rape upon her and because of which, she poured kerosene upon her and ignited herself. He has stated that when the said statement was made by the deceased, she was conscious. He has also stated that the deceased told him that the respondent accused under the pretext of the illness of his mother requested for cooking and took her to the bushes behind the Government bore well. He has admitted the fact that he was with the deceased from Andhari village till she died. In his cross-examination, he has stated that it took six hours to reach V.S. Hospital from Andhari. He has stated that the deceased became conscious on the way while going from Andhari to V.S. Hospital and had talked with her. He has also stated in his cross-examination that the deceased was asking for water on the way. He has further stated that he had called Dholka Police Station from Santokba Hospital. However, no police officer was present and nobody responded to the phone. He has admitted that he himself made a call. He has further stated that he got number of the police station from the Doctor. He has further stated that he had called Dholka Police Station from Santokba Hospital. However, no police officer was present and nobody responded to the phone. He has admitted that he himself made a call. He has further stated that he got number of the police station from the Doctor. He has further stated in his cross-examination that the Doctor at Santokba Hospital did not accept the case of the deceased. However, the Doctor had examined Nitaben. He has further stated that deceased Nitaben had talked with the deceased at Santokba Hospital and that he had heard the same. He has stated that the deceased told the same thing which she had told at Ahmedabad to the Doctor of Dholka. He has further stated in his cross-examination that the deceased was conscious when she was admitted to the ward in Ahmedabad. He has stated that Nitaben had talked with the policeman present at the ward and told the same thing which she had told before the Doctor at Dholka. He has stated that the Constable at Ahmedabad Hospital recorded the same. He has denied the fact that the deceased was unconscious from Andhari till V.S. Hospital. He has also denied the fact that the deceased was unconscious and that she regained consciousness during treatment. He has stated that he took out the case of Nitaben at V.S. Hospital. However, he denied the fact as to what treatment was given to the deceased as he was outside. He has stated that Nitaben has not record any statement in his presence in the ward. He has stated that his uncle Rainsing p.w.1 the complainant was sitting outside the ward with him. He has admitted the fact that they came outside and informed about the death of the deceased. He has admitted the fact that when they took the dead body of Nitaben, they found the police at village Andhari. He has admitted the fact that the police asked about the clothes of the deceased. However, he has informed the police that the cloths are burnt. He has denied the fact that he did not go to Ahmedabad. 14. The next witness Kiritbhai Kanjibhai Vasava, p.w.5 at exhibit 15, the panch witness of the scene of occurrence has turned hostile. Similarly, Kantibhai Maganbhai Vasava, p.w.6 at exhibit 16 also a panch witness, has turned hostile. However, he has informed the police that the cloths are burnt. He has denied the fact that he did not go to Ahmedabad. 14. The next witness Kiritbhai Kanjibhai Vasava, p.w.5 at exhibit 15, the panch witness of the scene of occurrence has turned hostile. Similarly, Kantibhai Maganbhai Vasava, p.w.6 at exhibit 16 also a panch witness, has turned hostile. In the deposition of both the hostile witnesses, nothing fruitful has come on record as far as prosecution is concerned. 15. The prosecution has also relied upon the deposition of Dr. Jaydev Narendrasinh Chudasama, Doctor of V.S. Hospital, p.w.7 at exhibit 22. He has stated in his deposition that he was on duty as Registrar in the burns unit of V.S. Hospital on 19.06.1995. He has stated that Nitaben was brought at 1.42 Hrs. on the said day. He has stated that when she was admitted, she informed him about the incident of rape by the respondent being his cousin and the suicide committed by her. He has stated that considering the condition of the deceased, he informed the police constable on duty to record the dying declaration. He has stated that when the statement of the deceased was taken, she was fully conscious and she was answering all the questions asked. He has also stated that the questions asked and the reply given by her have been noted by the police constable and thereafter the thumb impression of the deceased was taken and that he had also signed the said statement and even the police constable had signed the said statement. He has stated that the thumb impression was taken by constable in his presence. He has stated that he had informed the resident medical officer to examine the deceased as to whether the rape is committed or not and he has informed that such facility is not available in V.S. Hospital and advised that if the condition of the patient was good, she may be taken to Civil Hospital. He has stated in his examination-in-chief that 99% superficial deep burns were found on the body of the deceased. He has stated that from first question till the statement was recorded, the deceased was conscious. He has stated that burns ward is a separate ward and except doctor and staff, nobody is permitted to enter. He has stated in his examination-in-chief that 99% superficial deep burns were found on the body of the deceased. He has stated that from first question till the statement was recorded, the deceased was conscious. He has stated that burns ward is a separate ward and except doctor and staff, nobody is permitted to enter. He has stated that if any inquiry is to be made, then they would come out from the ward and ask the relatives. He has stated that when the statement was recorded, he and police constable and deceased were only there. No one else was present. In his cross-examination, he has denied the suggestion made by the defence. However, he has admitted the fact that if 99% burns are there, in ordinary course, the mental state of such patient would diminish. He has further denied the fact that when he first examined the deceased, she was not conscious. He has already denied the fact that as the deceased was not conscious, he treated her and then she regained consciousness and thereafter, her statement was taken. He has also further stated in his cross-examination that when he started taking history, Nitaben was admitted to burns ward. He has denied the suggestions made by the defence that the dying declaration was not recorded in his presence and he has also brought on record the papers of the medical treatment given to the deceased at exhibit 23. 16. The prosecution has also examined Vishnuprasad Manilal Pandya, p.w.8 at exhibit 24 who was working as Head Constable at V.S. Hospital. He has narrated in his examination-in-chief that the deceased was brought to V.S. Hospital on 19.06.1995 at 1.42 at night for the burn injuries received by her. He has stated that he made an entry in the book for calling Executive Magistrate to record the dying declaration of the deceased and also took opinion of the Doctor on duty. He has stated that Doctor was asking the question and he was writing the statement. He has stated that thereafter, after the statement was recorded, the thumb impression of right leg of the deceased was taken in presence of the Doctor and has also obtained signature of the Doctor. In his cross-examination, he has stated that after preparing yadi to call Executive Magistrate to record dying declaration, after about 510 minutes, he recorded the statement of the deceased. In his cross-examination, he has stated that after preparing yadi to call Executive Magistrate to record dying declaration, after about 510 minutes, he recorded the statement of the deceased. He has stated that before making report to executive magistrate, the deceased was conscious. He has stated that he and Doctor decided to record the statement of the deceased. He has further stated that the Doctor started asking questions and he made note of the same. He has stated that the except what has happened, Doctor did not ask any questions. He has also stated that it took 20 minutes to record the statement. He has stated that correction made in the statement is as per the correction made by the deceased while giving reply. He has however denied the fact that he is not aware if the deceased has made any reference to any word in English in her statement. He has stated that when he went to the burns ward, Doctor was present. He has stated that the words in bracket is the meaning of what the deceased said. He has admitted the fact that there is no reference that the statement was recorded as taken by the Doctor. He has also admitted that there is no signature made by him in exhibit 25. He has stated that there are two thumb impressions on the same, however he has stated that as the said paper was bent, the impression is engrafted and the same is touching of the same. He has stated that he himself has identified the thumb. He has however denied the fact that deceased was sleeping in the bed and while treatment was being given, the statement was recorded. He has stated that the statement was recorded while she was on stretcher and was being taken from emergency ward to burns ward. He has denied the suggestion made by the defence that exhibit 25 is written by him. He has however denied certain other suggestions made by the defence. 17. Prabhudas Mohahlal Mistri, p.w.9, exhibit 26 was working as Police Inspector in Dholka Police Station. He has narrated the manner in which the investigation was carried out and has denied certain suggestions made by the defence. 18. The P.M. Note at exhibit 11 shows the burn injuries of 2nd and 3rd degree as under - 1. 17. Prabhudas Mohahlal Mistri, p.w.9, exhibit 26 was working as Police Inspector in Dholka Police Station. He has narrated the manner in which the investigation was carried out and has denied certain suggestions made by the defence. 18. The P.M. Note at exhibit 11 shows the burn injuries of 2nd and 3rd degree as under - 1. 2-3 burns on face, anterior scalp hairs and injury of neck 2. 2-3 burns chest and abdom 3. 2-3 burns on both upper limbs 4. 2-3 burns on shoulder of back 5. 2-3 burns on both lower limbs The cause of death is due to shock as a result of burns and it is also recorded that vaginal smears sent to FSL examination. The Serological report at exhibit 8 does not show any presence of semen and even the prosecution has not been able to establish the blood group of the respondent accused. 19. Considering it as a whole, there is no eye witness to the incident of rape and from the evidence, it can be culled out that on hearing the shout, p.w.1 Raising Mansing Vasava and p.w.3 Mahendrabhai Dipsinh came to the house of the complainant where they found deceased burning, opened the door and p.w.1 Raising, the complainant has stated that his wife, i.e., mother of the deceased put a small blanket upon the deceased whereas, p.w.3 says that he had put a small blanket. 20. From the evidence on record, the statement of the deceased at exhibit 25 is of great significance. It is not in dispute that the deceased suffered 2nd and 3rd degree burn injuries. It is also not in dispute that she was taken to Saij in a bullock cart and then to Santokba Hospital at Dholka in tractor and thereafter in jeep to V.S. Hospital. The case papers produced on record at exhibit 23 by the Dr. Jaydev Narendrasinh Chudasama, p.w. 7 and the other evidence clearly shows that the deceased was brought to V.S. Hospital, Ahmedabad at 1.42 Hrs. The case papers further indicates that constant treatment was being given to the deceased, which shows at 1.50 AM, 2.15 AM, 2.30 AM, 2.40 AM, 2.45 AM, 2.50 AM, 2.55 AM. The record further shows that the deceased was brought to V.S. Hospital at 1.42 AM on 19.06.1995 in the burns ward and she expired on the same day. The case papers further indicates that constant treatment was being given to the deceased, which shows at 1.50 AM, 2.15 AM, 2.30 AM, 2.40 AM, 2.45 AM, 2.50 AM, 2.55 AM. The record further shows that the deceased was brought to V.S. Hospital at 1.42 AM on 19.06.1995 in the burns ward and she expired on the same day. The said case papers clearly indicate and there is a specific endorsement that the condition of the patient at 1.50 AM, 2.15 AM and 2.30 AM was very poor and difficulty in breathing and at 2.40 there is a specific endorsement that the deceased was unconscious and the further notes show that she was unconscious all throughout till 2.55 when she expired. The Doctor Jaydev Narendrasinh Chudasama, p.w.7 states in his deposition that when the statement was taken, she was full conscious and that she answered all questions asked by the police constable which have been noted by the police constable. The police constable Vishnuprasad Manilal Pandya, p.w.8 has stated that the questions were asked by the Doctor and he has noted it. He has further stated that her statement was taken while she was on stretcher on being taken from the emergency ward to burns ward. Whereas Dr. Jaydev Narendrasinh Chudasama, p.w.7 has categorically stated that he was on duty on 19.06.1995 as Registrar in the burns unit. p.w.1 Raising Mansing Vasava and p.w.3 Mahendrabhai Dipsinh say that they were present all throughout. 21. If the deposition of p.w.1 Raising Mansing Vasava and p.w. 3 Mahendrabhai Dipsinh is re-appreciated, p.w.1 Raisingh, the complainant has categorically stated that the deceased was unconscious till she was brought from Andhari to V.S. Hospital and on treatment being given at V.S. Hospital, she regained consciousness for half an hour before she expired. Whereas p.w.3 Mahendrabhai Dipsinh, p.w.3 has stated that she never talked about the incident of rape by the respondent at Dholka. Cumulatively reappreciating the evidence of p.w.1 Raising Mansing Vasava, p.w. 3 Mahendrabhai Dipsinh, Dr. Jaydev Narendrasinh Chudasama, p.w. 7 and police constable Vishnuprasad Manilal Pandya, p.w.8 on duty, is not only contradictory, but does not inspire any confidence. The medical papers show that general condition of the deceased was very poor when she was brought to VS Hospital. The so called version of the deceased given to p.w.1 Raising Mansing Vasava and p.w. 3 Mahendrabhai Dipsinh clearly lacks credibility. The medical papers show that general condition of the deceased was very poor when she was brought to VS Hospital. The so called version of the deceased given to p.w.1 Raising Mansing Vasava and p.w. 3 Mahendrabhai Dipsinh clearly lacks credibility. As decided by the Apex Court in the case of Poonam Bai vs. State of Chhattisgarh reported in (2019) 6 SCC 145 , wherein the Hon'ble Apex Court has observed thus in para 16 - “As far as the oral dying declaration is concerned, the evidence on record is very shaky, apart from the fact that evidence relating to oral dying declaration is a weak type of evidence in and of itself. As per the case of the prosecution, the deceased had made an oral dying declaration before Lalita Sahu (P.W. 2), Pilaram Sahu (P.W. 3), Parvati Bai (P.W. 4), and others. Though P.Ws. 2, 3 and 4 have deposed that the deceased did make an oral dying declaration before them implicating the appellant, this version is clearly only an afterthought, inasmuch as the same was brought up before the trial court for the first time. In their statements recorded by the police under Section 161 of the Code of Criminal Procedure, these witnesses had not made any statement relating to the alleged oral dying declaration of the deceased. These factors have been noted by the trial court in its detailed judgment. Thus, the evidence of P.Ws. 2, 3 and 4 relating to the oral dying declaration is clearly an improved version, and this has been proved by the defence in accordance with law.” 22. In the case on hand also, as per the evidence on record, the version of p.w.1 Raising Mansing Vasava and p.w.3 Mahendrabhai Dipsinh does not inspire confidence. Similarly, Dr. Jaydev Narendrasinh Chudasama, p.w.7 and police constable Vishnuprasad Manilal Pandya, p.w.8 also does not inspire any confidence and considering the state of health of the deceased, the recording of statement at exhibit 25 creates doubt. 23. Similarly, Dr. Jaydev Narendrasinh Chudasama, p.w.7 and police constable Vishnuprasad Manilal Pandya, p.w.8 also does not inspire any confidence and considering the state of health of the deceased, the recording of statement at exhibit 25 creates doubt. 23. The version of p.w.1 Raising Mansing Vasava that the deceased regained consciousness at V.S. Hospital is not supported by the medical papers at exhibit 23 and on the contrary, the medical papers show that constant treatment was required to be given to the deceased to save her life and it is not believable that she was in state of mind to give dying declaration in form and in manner in which it is shown in statement of the deceased at exhibit 25. 24. As rightly observed by the learned Sessions Court, the prosecution has not examined the mother and other important witnesses. Upon re-appreciation of the evidence on record, this Court is of the opinion that in the state of health of the deceased and as per the evidence on record, the trial court has rightly not believed the so called dying declaration at exhibit 25. This Court is in total agreement that the observations made by the trial court as regards state of health of the deceased who had received 99% of second and third degree burn injuries and appreciation of all the evidence by the learned Sessions Court, does not require any interference. Even the presence of semen is not found in the vaginal smear and in totality of the facts, the prosecution has not been able to prove the guilt to its hilt. 25.This Court is of the opinion that the learned Sessions Judge has rightly appreciated the evidence on record and even on re-appreciation of the evidence, the conclusion arrived at by the trial court deserves to be confirmed. The appeal therefore fails and is hereby dismissed. Bail bond stands cancelled. Record and proceedings be transmitted to trial court forthwith.