SHAMBHUBHAI KALABHAI RAVAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant is the husband of the deceased, who was convicted for the offences punishable under Ss. 306 and 498A of the Indian Penal Code (for short IPC). The marriage between the appellant and the deceased was ten years old, when on 31/7/1994, the deceased poured kerosene on her own body and set herself ablaze. The burn injuries suffered by her was the cause of death, which happened on 4/8/1994. The prosecution mainly relied upon the dying declaration of the deceased recorded by PW3-Kachrabhai. The dying declaration was recorded between 09:45 P.M. to 10:00 P.M. on 31/7/1994. Apart from relying upon the dying declaration, the prosecution relied upon the evidence of PW1- Dolabhai, the father of the deceased and PW4- Pravin Kumar, the brother of the deceased. Unfortunately, both the father and the brother did not support the prosecution and they were declared hostile. Admittedly, nothing could be brought on record in their cross-examination conducted by the public prosecutor for the benefit of the prosecution.

(2.) With the assistance of the learned counsel appearing for the appellant, we have perused the evidence of prosecution-witnesses, relevant documents and the dying declaration. The main submission of the learned counsel for the appellant is that there is a serious doubt about the correctness of the dying declaration. Another submission is that Bhavna, the sister of the deceased was a very important witness, who has been withheld by the prosecution. The submissions made by the learned counsel appearing for the respondent is that PW-3, who recorded the dying declaration was an Executive Magistrate who had no enmity with the present appellant and, therefore, there is no reason to disbelieve his testimony. Her submission is that though the dying declaration may not bear an endorsement of the doctor recording the fitness of the deceased to make a statement, on the Yadi forwarded by the police, the doctor had certified her fitness.

(3.) As stated earlier, the evidences of PW-1 and PW-4, the father and brother of the deceased do not help the prosecution as they did not support the prosecution. Now, what remains is that the dying declaration. If the conviction is to be based only on the dying declaration, necessarily, it must be of an unimpeachable quality. Before we go into the issue of the doubts expressed by the learned counsel appearing for the appellant about the dying declaration, it is necessary to make a reference to what the deceased purportedly stated in her dying declaration. Answers to question Nos. 6 and 7 are most material which read thus: -