CR.A/1079/1984 of STATE OF GUJARAT Vs BAI JAYABEN WO GANAGRAM BAVAJI on 6 November 1995

1. Whether Reporters of Local Papers may be allowed to see the judgment? No

2. To be referred to the Reporter or not? No

3. Whether their Lordships wish to see the fair copy of judgment? No

4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder? No

5. Whether it is to be circulated to the Civil Judge? No

....T......JT.......T........T......JT.......T........T......JT.......T..--------------------------------------------------------------- Shri P.S. Chapaneri, Addl. Public Prosecutor, for the Appellant Shri J.H. Tholani, Advocate, for the Respondent (amicus curie)

---------------------------------------------------------------- CORAM: A.N. DIVECHA & H.R. SHELAT, JJ.(Date: 10th November 1995)

ORAL JUDGMENT (per Divecha, J.)

The judgment and order of acquittal passed by thelearned District Judge at Rajkot on 6th June 1984 in SessionsCase No. 10 of 1984 is under challenge in this appeal preferredby the State of Gujarat.

2. The facts giving rise to this appeal move in a narrowcompass. The incident happened on 22nd November 1983 at about 5a.m. The victim of the incident was a lady by the name of

Shobhna. She was a married woman. It is the case of theprosecution that she was pregnant at the relevant time and hermother-in-law doubted the paternity of the child in womb. It isthe case of the prosecution that on the previous day themother-in-law (the accused for convenience) had taunted herdaughter-in-law that the child was conceived through a personother than her husband. The daughter-in-law (the deceased forconvenience) is reported to have stated thereafter that she wasbeaten by her mother-in-law. The deceased woke up the nextmorning at 5 a.m. She lit the hearth. It is the case of theprosecution that the pan containing kerosene was nearby. Themother-in-law also is reported to have woken up. She wasdisturbed at seeing the face of the deceased in the wee hours.She is reported to have pushed the deceased on the hearth. Inthe process kerosene from the pan spilled on the floor. Theclothes of the deceased thereupon got fire. She was then pushedby her mother-in-law and in the result she fell on herfather-in-law sleeping nearby. Later on the deceased wascarried to hospital. In the meantime, a message was conveyed tothe police station that the deceased tried to commit suicide.The deceased is stated to have reported to the doctor at thetime of her admission as an indoor patient in hospital that shereceived injuries of burns on account of a push given by hermother-in-law on the lit hearth. The necessary treatment wasgiven to her. In the meantime, the investigation was taken up.The complaint of the incident was recorded from the deceasedherself. In her complaint she is reported to have pointed anaccusing finger against her mother-in-law for the incident inquestion. The executive magistrate in charge was informed forrecording her dying declaration. Accordingly it was recorded.On completion of investigation, a charge-sheet against theaccused was submitted to the court of the Chief JudicialMagistrate at Rajkot. Since the case was triable by the Courtof Sessions, it was committed to the Sessions Court at Rajkot.It came to be registered as Sessions Case No. 10 of 1984. Thecharge against the accused was framed on 9th April 1984. Theaccused did not plead guilty to the charge. She was thereupontried. After recording evidence and recording the furtherstatement of the accused under sec. 313 of the Code of CriminalProcedure, 1973, by his judgment and order delivered on 6th June1984 in the aforesaid sessions case, the learned Sessions Judgeacquitted the accused of the charge levelled against her. Theaggrieved State has thereupon invoked the appellate jurisdictionof this court by means of this appeal.

3. The trump card stated to be in the hands of theprosecution is the dying declaration recorded by the ExecutiveMagistrate at Exh. 11 on the record of the case. The ExecutiveMagistrate recording the dying declaration is examined at Exh.9 on the record of the case. It transpires from his evidencethat, when he reached the hospital for recording the dying

declaration, the doctor in charge was in the operation theatre.He was summoned therefrom for the purpose of certifying that thedeceased was in a fit state of consciousness to give her dyingdeclaration. It transpires from the evidence of the ExecutiveMagistrate at Exh. 9 that, when he reached the room where thedeceased was kept, he found quite a few persons surrounding thepatient. The Executive Magistrate at Exh. 9 has admitted that,despite that position, he did not choose to ascertain from thedeceased whether or not she was tutored by anyone found aroundher at the relevant time. That apart, there appears to be oneinherent improbability in the version unfolded at trial throughthe Executive Magistrate at Exh. 9 with respect to the dyingdeclaration at Exh. 11 on the record of the case. Ittranspires from the evidence of the Executive Magistrate at Exh.9 that the doctor in charge was in the operation theatre at therelevant time. The said doctor, named, Dr. Buch, has beenexamined at Exh. 32 on the record of the case. In hiscross-examination he has admitted to the effect that he was inthe operation theatre at the relevant time. The prosecution hasnot chosen to lead evidence why Dr. Buch was in the operationtheatre at the relevant time. Whether or not he was therein forperformance of some surgery on some patient is nobody's case.If he was performing surgery on some patient, he would not comeout of the operation theatre in the midst of such surgery. Itmight be contrary to the professional ethics pertaining to themedical professional. Dr. Buch in his oral testimony at Exh.32 has nowhere stated why he was in the operation theatre andwhether or not he was busy in performing any surgery on somepatient. It would be difficult to accept the submission urgedbefore us by learned Additional Public Prosecutor Shri Chapanerifor the appellant that Dr. Buch might have gone to theoperation theatre just to verify whether or not the equipmentsfor surgery were properly kept. It is incumbent on theprosecution to lead cogent and convincing evidence in thatregard from Dr. Buch himself in his oral testimony at Exh. 32.For aught one knows, he might be actually busy in performingsurgery on some patient. If that was so, it would be highlyimprobable that he would come out of the operation theatre andremain all throughout the dying declaration came to be recorded.The Executive Magistrate in his oral testimony at Exh. 9 hasdeposed that the recording of the dying declaration lasted fornearly 20 minutes. No surgeon worth the name would leave hispatient in the lurch in the operation theatre if he has alreadystarted performing the surgery. Even if only anaesthesia isgiven to the patient towards preparation for surgery, no doctorwould ordinarily come out of the operation theatre even at thatstage. This unusual conduct on the part of Dr. Buch has notbeen explained by or on behalf of the prosecution in any manner,much less in a satisfactory manner. The dying declaration atExh. 11 on the record of the case deserves to be discarded onthis ground alone.

4. It is borne out from the evidence on record that the parentsof the deceased were informed of the incident at about 7 a.m.on that very day. They are reported to have rushed to thehospital and reached thereat at about 7.30 a.m. The complaintis at Exh. 37 on the record of the case. It appears to havebeen recorded around 8 a.m. At that stage the parents of thedeceased had already seen her. It is not uncommon in oursociety that the mother-in-law and the daughter-in-law are foundat daggers drawn. The society regards them as inimical to eachother right from day one. The parents of the deceased wouldtherefore be inclined to see that her mother-in-law isimplicated. Tutoring of the deceased in that regard cannotaltogether be ruled out. The complaint at Exh. 37 and thedying declaration at Exh. 11 can be said to be the result ofsuch tutoring. In that view of the matter, it would behazardous to rely on either the complaint at Exh. 37 or thedying declaration at Exh. 11 for the purposes of fastening thecriminal liability to the accused in this case though we areaware that the reliable and trustworthy dying declaration can bemade the sole basis of conviction. Even at the cost ofrepetition, we are inclined to reiterate that both the complaintat Exh. 37 and the dying declaration at Exh. 11 are found tobe tainted with unreliability and untrustworthiness.

5. It may not be out of place to refer to the information conveyed to the police station as found recorded in the stationdiary an extract of which is at Exh. 20 on the record of thecase. It has been recorded therein that the deceased hadattempted to commit suicide. It transpires therefrom that thisinformation was received from the duty Head Constable stationedat the hospital. This piece of evidence is capable of rulingout the possibility of homicidal death of the deceased.

6. Since the trump card in the hands of the prosecution isthe dying declaration of the deceased at Exh. 11 on the recordof the case and since we have found it to be devoid ofreliability and trustworthiness, we are of the opinion that theprosecution has failed to establish its case beyond reasonabledoubt at trial. We therefore find no reason to interfere withthe impugned judgment and order of acquittal.

7. Before parting we should like to record a note ofappreciation for learned Advocate Shri J.S. Tholani. At ourinstance he volunteered to assist this court on behalf of theaccused. It may be noted that the accused has not chosen toappear through any advocate for the purpose of this appeal. Noadvocate has come to be appointed by the Registry to appear forthe accused. Shri Tholani was sitting in the court-room and atour instance he volunteered to render assistanceinstantaneously. We appreciate his gesture to get ready with the matter in no time.

8. In the result, this appeal fails. It is herebydismissed. The bail bonds furnished by the accused arecancelled.