SHYAM CHHAGANBHAI DHORIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant-orig.accused (hereinafter referred to as 'the appellant') has preferred present appeal under Section 374 of the Code of Criminal Procedure, 1973, challenging the judgment and order of conviction and sentence dated 15th July 1995 passed by the learned Additional Sessions Judge, Surat, in Sessions Case No. 103 of 1992. The appellant was initially charged for the offence punishable under Sections 302 and 323 of Indian Penal Code in the background of the facts mentioned in the complaint registered vide C.R.No.1-507 of 1991 with Chowk Bazar Police Station, Surat. After conclusion of the Trial and appreciation of the evidence led during the course of trial, the learned Trial Judge held the appellant herein guilty for the charge of offence punishable under Sections 304 Part I and 323 of the Indian Penal Code, and the appellant has been ordered to undergo rigorous imprisonment for 7 (seven) years and to pay a fine of Rs.500/- and in default to undergo rigorous imprisonment for three months for the offence punishable under Section 304 Part I of the Indian Penal Code. No formal sentence has been passed by the learned Trial Judge so far as the offence found proved against the appellant punishable under Section 323 of the Indian Penal Code is concerned.

(2.) According to Shri B.P. Munshi. learned counsel appearing for the appellant, the judgment and order of conviction and sentence passed by the learned Trial Judge is erroneous and cannot be sustained in the eye of law, mainly on the grounds mentioned in paragraph no. 10 of the memo of the appeal. Shri Munshi has taken this Court through the initial case which was placed by the prosecution and the oral as well as documentary evidence led during the course of trial including the evidence of three doctors examined by prosecution. According to Shri Munshi. it is inferable from the evidence led by the prosecution itself that the victim-deceased must not have narrated anything as to the occurrence because he was not physically tit to stale the details which are being found in the nature of dying declaration. The dying declaration was produced before the learned Trial Judge with the list Ex. 15 and the same has not been exhibited as it does not bear the signature of the victim-injured. It bears the endorsement of the doctor at the bottom where the doctor has said that the patient is conscious. This dying declaration was recorded by the Police Officer of Chowk Bazaar Police Station on 12th December 1991 and it is the say of the prosecution that the statement was read over to the victim at about 05-00 p.m. Shri Munshi has taken me through the evidence of two witnesses who have been examined as witnesses by prosecution and has submitted that the victim-deceased must not be conscious at about 05-00 p.m. The real brother who is the complainant in the present case was present throughout near the cot of the victim-injured when the victim-injured was being treated in the hospital by the doctor. When the complainant has stated that the victim was not able to speak, the dying declaration allegedly recorded by the Police Sub-Inspector ought not to have been given any weightage. Neither specific serious motive has been alleged against the appellant nor the victim and appellant were inimical to each other. On the contrary, they were co-workers when suddenly on a small issue, some quarrel had begun. It is the say of the defence that the learned Trial Judge ought not to have presumed motive, intention or knowledge for linking the appellant with the crime in question. When the oral evidence of two witnesses examined is in direct conflict with the case of the prosecution, based on dying declaration, then the appellant could have been given benefit of doubt by the learned Trial Judge, is the sum and substance of the arguments advanced by Shri B.P. Munshi.

(3.) It is submitted that when the prosecution was placing reliance on the dying declaration recorded by the Police Sub-Inspector, each statement allegedly made by the victim was required to be proved by the said Police Sub-Inspector and the said Police Sub-Inspector was also supposed to prove that recording of the statement was genuine and he has acted with utmost care and caution. The prosecution was under obligation to prove that the victim/ patient was in lit state of mind at about about 05-00 p.m. on 12th December 1991. The victim-deceased was on the floor other than the doctor who has endorsed the statement allegedly made by the victim-deceased. The state of consciousness of a person is materially different than a condition which can be said to be a fit state of mind. The Court cannot ignore the nature of injuries found by the doctor who had examined the victim initially and the other one who had performed the autopsy. There was a grave injury on the head and the person having such an injury affecting brain would not be in a position to speak or stale anything with such minute details. According to Shri Munshi, meticulous narration which is found in the dying declaration itself is sufficient to raise doubt about its genuineness if the version of one of the two eye-witnesses is believed as to the physical condition of the witness at the relevant point of time and the injuries which were noticed by the doctor during the course of treatment of the victim.