Research › Search › Judgment

Gujarat High Court · body

2020 DIGILAW 364 (GUJ)

State of Gujarat v. Ramesh Dhansukh Rathod

2020-02-27

R.M.CHHAYA, VIRESHKUMAR B.MAYANI

body2020
JUDGMENT : R.M. CHHAYA, J. 1. The present appeal is against the judgment and order of acquittal passed by the learned Sessions Judge, Jamnagar dated 11.12.1996 in Sessions Case No. 114 of 1995. 2. It is the case of the prosecution that the respondent-original accused married the deceased-Vinaben on 18.2.1995. It is the case of the prosecution that the respondent-original accused used to time and again meted mental and physical cruelty upon the deceased. It is the case of the prosecution that on 21.6.1995 when the deceased complainant was at her matrimonial house and when she asked for some money for household expenses, the respondent accused got enrage and assaulted the deceased- original complainant. It is further case of the prosecution that the respondent original accused poured kerosene upon the body of the deceased-original complainant and ignited her with match-stick, knowing fully well that such act of the respondent would cause death of the deceased. On the aforesaid factual matrix it is the case of the prosecution that the respondent is guilty for the offence under Sections 302 and 498-A of the Indian Penal Code. The first information was lodged by the deceased original complainant at the hospital and the same was registered with A-Division Police Station, Jamanagar City. The respondent came to be arrested and investigation was carried out by the Investigating Officer ultimately charge-sheet was filed under the jurisdiction of the Court and the case was committed to the Court of Sessions at Jamnagar. As the respondent-original accused did not plead guilty, he is put to trial. The prosecution relied upon 14 prosecution witnesses and also relied upon the documentary evidence such as postmortem-note Ex.17, office yadi where the police yadi Ex.29, FIR at Ex.23 and medical papers at Ex.27, the case papers of admission of the deceased to the hospital, case papers relating to treatment given by PW-11 Dr. Hitesh Nareshchandra Shah alongwith the history given by the deceased, dying declaration recorded by the Executive Magistrate at Ex.14, inquest panchnama at Ex.31, panchnama of the scene of occurrence at Ex.32 in particular. 3. The prosecution predominantly relied upon the history given by the deceased to Dr. Hitesh Nareshchandra Shah in the form of a dying declaration. Hitesh Nareshchandra Shah alongwith the history given by the deceased, dying declaration recorded by the Executive Magistrate at Ex.14, inquest panchnama at Ex.31, panchnama of the scene of occurrence at Ex.32 in particular. 3. The prosecution predominantly relied upon the history given by the deceased to Dr. Hitesh Nareshchandra Shah in the form of a dying declaration. The dying declaration recorded at Ex.14 by the Executive Magistrate, the FIR recorded by PW-14, wherein it was specifically the case of the prosecution before the Sessions Court that these three pieces of evidence amounts to dying declaration as envisaged under Section 32 of the Evidence Act and the guilt of the respondent-original accused have been proved for which he has been convicted for the offence under Sections 302 and 498-A of the Indian Penal Code. The learned Sessions Court after considering the evidence on record, more particularly the evidence of PW-4 who happens to be a counselor of the Municipal Corporation and he reached the house where the incident took place and also took the deceased to the hospital alongwith one of the relative. The learned Sessions Court after appreciating the evidence, dying declaration recorded by the Executive Magistrate as well as the medical history alleged to have been given by the deceased before the Dr. Hitesh Nareshchandra Shah PW-11 came to the conclusion that there are material contradictions as regards time and all the three dying declarations suspicion about its existence. The learned Sessions Court relying upon such findings came to the conclusion that even the endorsement made by the doctor as regards the status of the health of the deceased is doubtful and thus has come to the conclusion that no offence under Section 302 of the Indian Penal Code is made by the prosecution. The learned Sessions Court having examined the evidence on record and also considering the deposition of PW-2 Hiraben Damjibhai Vara who happens to be the mother of the deceased has referring to the cross-examination of said witness has come to the conclusion that for the first time before the Court the said witness has deposed about the incident of beating the deceased by the respondent original accused and in absence of any other evidence the learned Sessions Court has not believed the case of the prosecution as far as the offence under Section 498-A of the Indian Penal Code is concerned. Having appreciated the evidence thus the learned Sessions Court by the impugned judgment and order of acquittal have been pleased to acquit the original accused from all the offences. 4. Being aggrieved by the same the present appeal is filed by the State under Section 378 of the Criminal Procedure Code. 5. Heard Mr. Hardik Soni, learned APP for the State and Mr. J.M. Buddhbhatti, learned advocate for the respondent. 6. Mr. Hardik Soni, learned APP has taken this Court to the deposition of PW-5, PW-6, PW-11, PW-12 as well as PW-14 and relying upon the medical history as mentioned in Ex.27, the MLC to PW-11, the FIR at Ex.23 and the dying declaration made before the Executive Magistrate at Ex.14 contended that the deceased has categorically stated before the doctor, the police officer who recorded the complaint, history before the Executive Magistrate has clearly stated that deceased was subjected to cruelty by the respondent-original accused and he poured kerosene on the body of the deceased and ignited her with the match-stick. 7. Relying upon the same Mr. Soni, learned APP contended that all the three versions in the form of dying declaration are duly proved by the prosecution and the quilt of the respondent-original accused is proved beyond any doubt. 8. Mr. Soni further contended that the learned Sessions Court has misread the evidence of PW-11 at Ex.26 and has wrongly discarded the history which was recorded by Dr. Hitesh Nareshchandra Shah at Ex.27. 9. Mr. Soni referring to the dying declaration at Ex.14, recorded by the Executive Magistrate, PW-5 contended that the learned Sessions Court has given undue importance to the fact that the doctor who endorsed the said dying declaration at Ex.14 is not examined. Mr. Soni, learned APP contended that upon appreciation of the evidence rendered by PW-11 Dr. Hitesh Nareshchandra Shah which is proved beyond doubt that the patient was conscious enough to make a statement. Mr. Soni, learned APP referring to the FIR at Ex.23 contended that the learned Sessions Court has also given undue importance to the time factor at which the complaint was registered in the police station. It was contended by the learned APP that as such there is no contradiction in time. Referring to the yadi sent to the Executive Magistrate it was contended by Mr. It was contended by the learned APP that as such there is no contradiction in time. Referring to the yadi sent to the Executive Magistrate it was contended by Mr. Soni, learned APP that on deceased being admitted to FS-3 Ward at Jamnagar at 11:45 hours immediately yadi was sent to the Executive Magistrate at 12:30 hours and the Executive Magistrate recorded the dying declaration at Ex.14 by 11:20 hours. Referring to the FIR, the depositions of PW-5 as well as PW-14 it was contended by learned APP that on the contrary the Investigating Officer before recording the FIR has taken care and caution and did not enter the ward, where the deceased was treated. Referring to the dying declaration at Ex.14 as well as the medical history at Ex.27 Mr. Soni contended that the prosecution has been able to prove beyond doubt that when the statements were recorded in the form of dying declaration, the patient was conscious enough and in a proper state of mind to make the correct statement. Mr. Soni, learned APP submitted that no person who is about to die would make any false statement and the learned Sessions Judge has wrongly come to the conclusion that all the three dying declarations are not trustworthy and create any doubt. Mr. Soni also contended that the learned Sessions Court has overlooked the fact that marriage span was hardly of four months and even the mother of the deceased who is examined as PW-2 has categorically deposed before the trial Court that the respondent used to beat the deceased and used to quarrel with her. According to Mr. Soni, learned APP the same constitutes offence under Section 498-A of the Indian Penal Code. Mr. Soni also contended that even if the dying declarations are believed, the evidence adduced by the prosecution clearly makes out a case of homicidal death and the respondent can be held guilty of offence under Section 306 of the Indian Penal Code. On the aforesaid grounds Mr. Soni, learned APP contended that the impugned judgment and order deserves to be quashed and the same deserves to be reversed and order of conviction under Sections 302 be passed by allowing the appeal. 10. Per contra, Mr. J.M. Buddhbhatti, learned advocate for the respondent opposed this appeal. Mr. Buddhbhatti contended that the prosecution has examined an independent witness being Hasmukh Babulal Jethva PW-4 at Ex.11. 10. Per contra, Mr. J.M. Buddhbhatti, learned advocate for the respondent opposed this appeal. Mr. Buddhbhatti contended that the prosecution has examined an independent witness being Hasmukh Babulal Jethva PW-4 at Ex.11. Relying upon the deposition of said witness Mr. Buddhbhatti contended that he has categorically deposed that because of paucity of funds the deceased got frustrated and the incident happened. 11. Mr. Buddhbhatti contended that even the opinion expressed by Dr. Chetan Biharilal who performed the postmortem upon the body of the deceased clearly shows that the prosecution has got up her own case while recording history in the medical papers and the dying declaration made before the Executive Magistrate. Mr. Buddhbhatti also contended that even for the FIR at Ex.23 he has doubt about its veracity as rightly held by the learned Sessions Court. Mr. Buddhbhatti pointed out that the contradictions found in time of endorsement made on all these pieces of evidence and contended that contradictions is so material that the very existence of such statement is doubtful and the state of health of the deceased is further doubtful. Mr. Buddhbhatti also further contended that considering the toe impression on this document it creates doubt about its veracity. Mr. Buddhbhatti also pointed out that when the deceased was first admitted to the hospital no such history was given as can be seen from the PW-12 Dr. Hitesh Nareshchandra Shah at Ex.28. Dr. Hitesh Nareshchandra Shah relying upon the said witness contended that as far as the doctor is concerned, the said witness had the first opportunity to examine the deceased and no such history as alleged has been recorded by the said doctor. Mr. Buddhbhatti contended that the learned Sessions Court has rightly come to the conclusion that three different dying declarations relied upon by the prosecution create doubt about its authenticity and has rightly not been relied upon and findings arrived at by the learned Sessions Court that such doubtful piece of evidence cannot be made base for conviction for the offence under Sections 302 as well as Section 498-A. Referring to the deposition of PW-2 Hiraben Damjibhai Vara Mr. Buddhbhatti contended that the learned Sessions Court has rightly appreciated the said evidence and has correctly recorded that in the cross-examination though the said witness was declared hostile in the cross-examination it has come on record that as far as the allegation of beating the deceased before the incident was being narrated for the first time in the Court and at no stage statement was given by the said witness or any of the witnesses. Mr. Buddhbhatti merely relied upon the deposition of PW-4 and submitted that the said witness is respectable person of the society and he is not related in any manner with the deceased as well as the respondent. Mr. Buddhbhatti referring to the said deposition contended that on the contrary the said witness was helpful in admitting the deceased as early as possible to the hospital. Mr. Buddhbhatti submitted that the learned Sessions Court has rightly appreciated the evidence on record and has also rightly taken into consideration the fact that other witnesses who were even as per the case of the prosecution present at the scene of occurrence have not been examined by the prosecution and has correctly recorded the order of acquittal which does not require to be interfered with by this Court in its appellate jurisdiction. Mr. Buddhbhatti contended that the appeal is meritless and no other view deserves to be taken in the facts and circumstances of this case and as per the evidence on record the impugned judgment is legal and proper and the same deserves to be confirmed by dismissing the present appeal. 12. No further or other contentions, grounds or submissions have been raised by the learned advocates appearing for the parties. 13. We have also perused original record and proceedings. At the outset it deserves to be noted that the prosecution has examined as many as 14 witnesses. PW-1 Narmadaben Jaysukhlal who is relative of the deceased and who took her to the hospital alongwith PW-4 Hasmukh Babulal Jethva has turned hostile. PW-2 Hiraben Damjibhai Vara, mother of the deceased has also turned hostile and even the father of the deceased PW-3 Damjibhai Ramjibhai has turned hostile. Other panchas have also turned hostile. Upon considering the deposition of PW-6 Dr. Chetan Biharilal at Ex.15 and the postmortem note at Ex.17 it clearly appears that the said witness performed the postmortem of the deceased on 22.6.1995. Other panchas have also turned hostile. Upon considering the deposition of PW-6 Dr. Chetan Biharilal at Ex.15 and the postmortem note at Ex.17 it clearly appears that the said witness performed the postmortem of the deceased on 22.6.1995. The said witness has narrated the burns injuries found on the body of the deceased more particularly as recorded in Column No. 17 of the postmortem note. The said witness has also deposed that no burns or injuries were found on the bottom of the feet. He has also opined in his cross-examination that the burns may be accidental. He has also stated that the deceased has sustained 95% burns. He has also deposed that no bandage was found on the ears of the deceased and he has also deposed that the deceased may find it difficult to hear and may not even find difficult. From the deposition of the said doctor therefore it is found that the deceased had 95% burns injuries and no injuries were found on the bottom of the feet. The other important witness which deserves to be referred is the deposition of PW-4 Hasmukh Babulal Jethva who is an independent witness and a practicing advocate as well as counselor of the Municipal Corporation. The said witness has narrated that it was informed by Hamukh Jethva and, therefore, he immediately went to the house of the deceased and found the deceased burnt all over the body. He has also stated that he asked the deceased as to what has happened, that what have you done and, as per he stated, the deceased informed him that as her husband is not giving any money she has taken this step and has expressed that upon whom should she be dependent. He has also stated that he accompanied the deceased firstly in the rickshaw upto Dipak Tokiz and then in the ambulance to the hospital. He also stated that he stayed at the hospital for half an hour. He has also stated that the police constable was inquiring from the deceased and the deceased was answering the same. In his cross-examination also he has reiterated that the deceased has not told him that the respondent-original accused has sprinkled kerosene over the body and ignited her. He has also reiterated what has been stated by the deceased as deposed by him in the examination-in-chief. In his cross-examination also he has reiterated that the deceased has not told him that the respondent-original accused has sprinkled kerosene over the body and ignited her. He has also reiterated what has been stated by the deceased as deposed by him in the examination-in-chief. He has also further stated that the deceased did not inform the police head constable on duty that the respondent-original accused sprinkled the kerosene and ignited her. The Executive Magistrate has been examined by the prosecution as PW-5 at Ex.12. The said witness has stated that on receipt of the yadi at Ex.13 he went to the Irvin hospital into the ward of Dr. Dodiya and contacted the doctor. The said witness has further stated that he asked for the opinion of the doctor about the consciousness of the patient/deceased and has also stated that the doctor gave such opinion in writing which was made before recording of the dying declaration. He has also stated that such endorsement about consciousness was made by 1:05 hours. In his cross-examination also he has made such statement as made in the examination-in-chief. However, in his cross-examination he has stated that the deceased did not inform him that she is conscious enough to give the statement as doctor had given the opinion. Denying other suggestions made by the defence the said witness has also categorically deposed that after he recorded the declaration he went outside the hospital and found the Police Inspector PW-14 waiting for him and on demand being made he gave a xerox copy of dying declaration as recorded by him and left immediately for his office and it took about 20 minutes. The prosecution has also examined Dr. Nilesh Keshavji Gelyani as PW-12 who was the doctor incharge when the deceased was admitted to the hospital. He has deposed that the deceased was brought to the hospital at 11:45 hours on 21.6.1995. He has also stated that he treated the deceased and found that her whole body was burnt. He has stated that she was admitted as indoor patient, however no treatment was given by him. He has also brought on record the medical case papers at Ex.27. In his cross-examination the said witness has categorically stated that he asked the history (as regards the incident) to the deceased/patient. He has stated that she was admitted as indoor patient, however no treatment was given by him. He has also brought on record the medical case papers at Ex.27. In his cross-examination the said witness has categorically stated that he asked the history (as regards the incident) to the deceased/patient. He has also stated in his cross-examination that the deceased/patient did not give the history that her husband had burnt her. He has also further stated that if such history would have been given the case would fall under the category of homicidal death. He has also stated that the deceased/patient gave history of burns. The other witness heavily relied upon by the prosecution PW-11 Dr. Hitesh Nareshchandra Shah at Ex.26. The said witness has stated that he was student of post-graduation in surgery. He has also stated that he took the history in MLC Case No. 2392 of 1995 at 1 O'clock (13:00 hours). The said witness narrated the history as recorded by him in the case paper at Ex.27. He has stated that the history was given by the deceased/patient and the same has been recorded in his hand writing. He has stated that when the history was given, the patient/deceased was completely conscious and was conscious about the place and time and was able to recognize everybody. The said witness has also referred to the endorsement made by the sister on duty (made by aunty of the deceased). The said witness has also stated that Dr. Kamal Pancholi is his junior and the findings were noted by him including the yadi made by the Medical Officer of the Casualty Department as well as the yadi sent to the police. He has also stated that the deceased was conscious till 6 O'clock. In his cross-examination however he has stated that he has duty of 24 hours. He has also categorically stated that the history recorded in the case paper at Ex.27 at 1 O'clock is made by him and thereafter it is made by his junior. He has also stated that the deceased was admitted to the ward at 11:45 hours and the history was written by him at 1 O'clock. He has also admitted the fact that first the patient is taken to the casualty ward and thereafter patient is referred. He has also stated that the deceased was admitted to the ward at 11:45 hours and the history was written by him at 1 O'clock. He has also admitted the fact that first the patient is taken to the casualty ward and thereafter patient is referred. He has also stated that the OPD was continued till 12:30 in Room No. 8 which is on the ground floor of the old building. He has also stated that when he treated the patient, no bandages were there. He has also stated that firstly his junior gave I.V. Flu. and the same is noted by him in the medical papers which was inspected by him at 1 O'clock. He has admitted that I.V. Flu. contains sedative. He has also stated that poor risk consent means the condition of the patient is very serious and there is a noting of information given to the relative. He has also admitted that when he started taking history from the patient the I.V. Flu. was being given. He has stated that he asked the patient/deceased in Gujarati and whatever was stated by her in Gujarati is transcribed in English language by him. He has also stated that he does not remember whether the deceased gave the history at one stretch or in piece meal. He has also stated in his cross-examination that it took about 15 minutes to record the history. He has also admitted in his cross-examination that certain notings have been made by the junior and not by Dr. Maria. He has also stated that there were 95 to 100% burns. He has also stated that if the particles of carbon get settled, the patient may have difficulty in breathing. He has also admitted that the case is first registered in the casualty and at that time Dr. Galeya was on duty. He has also admitted that Dr. Gelyani registered the case and referred the patient to Dr. Dodiya's ward. He has also stated that the doctor who is on duty in casualty can also ask the history. He has also stated and admitted that Dr. Galeya registered the case and has also written the history. He has however stated that the patient was directly admitted to the ward. He has also admitted that no statement was recorded by the police. He has also stated and admitted that Dr. Galeya registered the case and has also written the history. He has however stated that the patient was directly admitted to the ward. He has also admitted that no statement was recorded by the police. He has however stated that the blanks found in the medical case papers and the pagination is because of different time and that the pagination is given by the sister and the other noteworthy witness relied upon by the prosecution is PW-14 Investigating Officer at Ex.39 at Page-117. The said witness has stated that he was on duty in A-Division on 21.6.1995 and that the incident took place at about 9 O'clock. He has narrated the manner in which the investigation was carried out by him, the statements of various witnesses recorded by him, the factum of impression of the panchnama of scene of occurrence, inquest panchnama in particular. He has also stated the statement made by other witnesses more particularly PW Nos. 1, 2 and 3. He has also categorically stated that he had recorded the statement of Jayantilal Jethabhai who was working as watchman in Irvin Hospital. He has also stated that he had recorded other statements of Ramesh Jayantilal, Sardaben Dahyabhai, Jayshriben Atulkishan those who had assembled at the scene of occurrence after the incident. He has also stated that Dr. Ashok Jidaliya was on duty in surgical ward No. 3 and who has been cited as witness. Nothing further is found in the deposition of the said witness. 14. The prosecution has examined PW-10 Manbha Bapashaheb Parmar at Ex.21. The said witness has stated that he was on duty at City A-Division Police Station, Jamnagar on the date of the incident between 8:00 a.m. to 1:00 p.m. He has stated that he received a vardi from PSO at about 12:45 hours in relation to the fact that Vinaben-deceased has been admitted in the ward of Dr. Dodiya and has received burns injuries. He has stated that he went to the hospital. He has further stated that dying declaration of Vinaben was to be recorded and, therefore, he stood outside the ward. He has stated that after the dying declaration was recorded he went inside the ward and recorded the statement of deceased Vinaben. He has also stated that the member of Women Security Committee, Kulsumben was present in the ward. He has further stated that dying declaration of Vinaben was to be recorded and, therefore, he stood outside the ward. He has stated that after the dying declaration was recorded he went inside the ward and recorded the statement of deceased Vinaben. He has also stated that the member of Women Security Committee, Kulsumben was present in the ward. He has further stated that he went to the deceased and inquired about her name. He has further stated that he inquired as to what her husband is doing and the deceased replied that he has been transferred to Rajkot, as he is working in State Transport. He has been transferred to Rajkot and quarrels with him and does not give any money for household expenses. He has further narrated that the deceased stated that on 21.6.1995 the respondent asked her to prepare tea but no sugar was there in the house. He has further narrated that the deceased stated that therefore they went to her matrimonial house to have tea. He has also stated that deceased thereafter stated that her mother went out for work. He has stated that the deceased further stated that after she left she again demanded money for household work and at that moment the respondent got enrage and poured kerosene upon her body and ignited her with the match-stick. He has further stated that the deceased stated that her clothes started burning and the respondent went away. He has further stated that, the deceased stated that she started shouting, persons came from the neighbourhood and poured water and extinguished the fire. He has stated that when the deceased stated the aforesaid, she was conscious. He has further stated that Dr. Joshi has made an endorsement that the deceased is conscious and has signed the same. He has further stated that the statement recorded by him in his own hand writing and the same is also signed by Kulsumben, Member of the Women Security Committee and that he has also taken signature of the deceased. He has further stated that as the bandages were there he took toe impression of right leg of the deceased and thereafter he signed in presence of Kulsumben, the Member of Women Security Committee. In his cross-examination he has stated that when he received the yadi he was in the police station. He has further stated that as the bandages were there he took toe impression of right leg of the deceased and thereafter he signed in presence of Kulsumben, the Member of Women Security Committee. In his cross-examination he has stated that when he received the yadi he was in the police station. He has stated that the hospital is at a distance of 3 kilometers from his office. He has further stated that there is a police chowki in the Irvin Hospital where two head constables and two constables are there. He has admitted the fact that he reached the hospital at 13:50 hours. He has further stated that he inquired from the staff of the hospital and was informed that the dying declaration is being recorded and hence he stood outside. He has further stated that about after five to seven minutes the Executive Magistrate came out with dying declaration. He has further stated that after the Executive Magistrate came out he went inside the ward. In his cross-examination he has stated that no relatives of the deceased were there in the ward. He has stated that no sister was there. However, he has admitted that Kulsumben, the Member of Women Security Committee and he and his writer were there. He has stated that on making inquiry the deceased narrated the incident and the reply given by the deceased is recorded as a complaint. He has stated that it took about 15 minutes to record the whole complaint. He has stated that he himself took toe impression of right leg and he himself has identified the same. He has stated that thereafter he sent his writer to call the doctor who was sitting on his table and the doctor made an endorsement that the patient is conscious. He has stated “that the patient is conscious” is not written by the doctor but is written in his own hand writing. He has also admitted in his cross-examination that the hand writings in the complaint and the hand writings in the panchnama are of one person and the same are of Marunjay, his writer. He has further stated that in the ward the patient is conscious and identification of the toe impression of Vinaben is also seen by his writer Marunjay. 15. He has further stated that in the ward the patient is conscious and identification of the toe impression of Vinaben is also seen by his writer Marunjay. 15. Upon perusal of the Case Paper No. 122700 which is part of Ex.27 it is clear that the deceased was brought to Irvin Hospital at 11:45 hours and there is a noting that she was admitted to FS-3 ward of Dr. V.B. Dodiya which is signed by PW-12 Dr. Hitesh Nareshchandra Shah. Except the fact that insta burns and supernatural burns no history is found, whereas in the first page of Ex.27 which is MLC No. 2392 of 1995 as deposed by PW-11 (Page-245) and according to the said witness the history given by the said patient reads as under:- 1.00 PM History Taken by Dr. Hitesh Shah R1SUiii History given by pt herself. - NBM - TPR ½ - I/ O chas H/O Homicidal Burns today at 10.30 AM pt is at own her mother home. Her husband came there he started beating her She is alone at her home. Then her husband spray kerosene on her burnt with match stick. - R Ampicaly 500 iv (6) - Inj geta 80 mg in (8) - Rantac 1g in (12) - Fortrin 1g in (12) - R RL 36 (.) iv (illegible) 18 (.) in Fizt (illegible) She shouted people of surrounds gathered and brought by her relative in hospital. Her relative have sprayed water to save her. - R. TT 0.5 ml 1m/s Poor RBK Co (illegible) - Police informed w/f cc - Inform os C/O Pain in abdomen, Vomiting No H/O Passing stool and Urine after burn No H/O Full or other injury on other site of body. P/H NAD No H/O any operadioa Disease f/o N/P P/H Vegetarian B and (N) B No Bad Habit 16. On first entry in the hospital which is also part of Ex.27 which does not record any history as alleged by the prosecution. The PW-12 who admitted the deceased in the hospital has categorically deposed that the deceased did not give any history of having been beaten by the respondent-accused, having poured kerosene and ignited. The said factum has happened at 11:45 hours, whereas the history recorded by Dr. Hitesh Nareshchandra Shah PW-12 even according to the said witness is at 1 O’clock. The PW-12 who admitted the deceased in the hospital has categorically deposed that the deceased did not give any history of having been beaten by the respondent-accused, having poured kerosene and ignited. The said factum has happened at 11:45 hours, whereas the history recorded by Dr. Hitesh Nareshchandra Shah PW-12 even according to the said witness is at 1 O’clock. Couple with the aforesaid facts, on perusal and re-appreciation of the evidence of original record and proceedings it is found that the endorsement made on dying declaration at Ex.14, the FIR at Ex.23 and the history at Ex.27 are by different doctors and except Dr. Hitesh Nareshchandra Shah no one is examined by the prosecution. Though Mr. Soni, learned APP has contended that the learned Sessions Court has wrongly given importance to the time, upon re-appreciation of the evidence on record this Court is of the opinion that the same on the contrary requires a closure scrutiny. The evidence on record clearly shows that the incident occurred at about 10:30 and the deceased was brought to the Irvin Hospital at 11:45. The yadi to Executive Magistrate is sent at 12:30 and the Executive Magistrate even as per the dying declaration recorded by the Executive Magistrate at Ex.14 and the oral testimony of the said witness at Ex.12 show that the endorsement was made at 1:05 p.m. on 21.6.1995. Though from the original it is difficult to determine the name of the doctor and even the Executive Magistrate has not mentioned the name in his deposition, it is a matter of fact that even according to the Executive Magistrate he started recording the dying declaration after the endorsement was made. The Executive Magistrate has further deposed that recording of dying declaration was over at 13:20 hours and has stated that the doctor gave opinion at 1:25 hours. We find from the original that there is some overwriting over the time also. As far as the toe impression of the leg is concerned, the same is not identified by anybody. On further re-appreciation of the evidence more particularly of PW-10 Manbha Bapashaheb Parmar, who has stated that he recorded the statement of the deceased, it deserves to be noted that even according to his deposition he entered the ward only after the dying declaration was over and the Executive Magistrate came out of the ward. On further re-appreciation of the evidence more particularly of PW-10 Manbha Bapashaheb Parmar, who has stated that he recorded the statement of the deceased, it deserves to be noted that even according to his deposition he entered the ward only after the dying declaration was over and the Executive Magistrate came out of the ward. He has deposed before the Court that he reached Irvin Hospital at about 13:15 hours. The FIR at Ex.23 even according to the said witness is not recorded in his hand writing but in the hand writing of writer of the Investigating Officer who is examined as PW-14. It is recorded in the FIR not by the doctor but by the writer that the patient is conscious and the time noted is 2:00 p.m. The signature of the doctor also creates doubt. It is also noteworthy that when the dying declaration was recorded by the Executive Magistrate and the statement was recorded at Ex.23 by PW-10 Manbha Bapashaheb Parmar, the Member of Women Security Committee was also present. Even the toe impression has not been identified though stated in the deposition. 17. We find from the evidence on record and upon re-appreciation of the deposition of PW-4 that the history which the prosecution has brought on record by way of dying declaration, the statement made before the doctor and the police officer, is not found in the deposition of the first person to meet the deceased after the incident and who brought her to the hospital. The said witness is an independent witness. The said witness is neither relative of anybody and is a man of social status. Couple with the fact that the doctor who had first admitted the deceased also stated that no such history as alleged is mentioned by Dr. Hitesh Nareshchandra Shah or what is brought on record by the prosecution as dying declaration before the Executive Magistrate and the statement recorded by PW-10 Manbha Bapashaheb Parmar was narrated by the deceased even though asked for. The time leg in the three documents i.e. Ex.14, 23 and 27 itself create doubt of its authenticity. Hitesh Nareshchandra Shah or what is brought on record by the prosecution as dying declaration before the Executive Magistrate and the statement recorded by PW-10 Manbha Bapashaheb Parmar was narrated by the deceased even though asked for. The time leg in the three documents i.e. Ex.14, 23 and 27 itself create doubt of its authenticity. The learned Sessions Court having minutely appreciated the evidence on record has therefore correctly come to the conclusion that the case of the prosecution that Ex.14 dying declaration, history given to the doctor at Ex.27 and the statement recorded by the PW-10 Manbha Parmar at Ex.23 should be made basis of conviction is rightly not believed. Reading all these three pieces of evidence on record create doubt as rightly observed by the learned Sessions Court and upon re-appreciation of the said pieces of evidence we find that the observation made by the learned Sessions Court is correct appreciation of the evidence on record and no interference is called for. The learned Sessions Court has thus rightly come to the conclusion that the conviction under Section 302 cannot be based on such doubtful and weak evidence. The factum of the respondent having threatened the deceased on the date of incident in the presence of PW-2 has been stated by PW-2 Hiraben, mother of the deceased for the first time in the Court. No other incident of even remote cruelty is found from the record. The learned Sessions Court has therefore rightly appreciated the evidence and has correctly come to the conclusion that the prosecution has not been able to prove the guilt of the respondent-original accused on any of the charges leveled. The learned Sessions Court has also correctly appreciated the evidence and has come to the conclusion that no offence under Section 306 of the Indian Penal Code as well is carved out. We are in total agreement with the findings arrived at by the learned Sessions Court and upon re-appreciation of the evidence on record this Court is of the opinion that no other view need to be taken. The order of acquittal deserves to be confirmed. Resultantly the appeal is dismissed. 18. Record and proceedings be sent back to the learned Sessions Court forthwith.