IMPORTANT POINT
Murder – Merely because there are minor discrepancies in version given by prosecution witness with regard to dying declaration and with regard to manner of occurrence of incident, first dying declaration given by deceased before independent witness, cannot be ignored.

JUDGMENT :

VIPUL M. PANCHOLI, J.

1. The present appeal has been directed against the final order dated 21.07.2016 passed by the High Court of Gujarat at Ahmedabad in Criminal Appeal No. 539 of 2006, by which the High Court has allowed the appeal filed by the State of Gujarat qua the present appellant/accused, and thereby, partly set aside the judgment dated 19.11.2005 rendered by the Additional Sessions Judge and Presiding Officer, 6th Fast Track Court, Banaskantha, at Deesa in Sessions Case Number 40 of 2005. Thus, the High Court convicted the appellant/accused for committing the offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as “the IPC”) and sentenced with imprisonment for life and a fine of Rs. 10,000/- and in default to further undergo simple imprisonment of one month.

2. The brief facts of the present case are as under:

(i) It is the case of the prosecution that the appellant/accused and the co-accused, Bherabhai Revaji Majirana, entered into criminal conspiracy in order to kill Leelaben and Ganesh, her son, and to execute the said conspiracy, on the date of the incident, i.e. the intervening night of 29.11.2004 and 30.11.2004, when Leelaben and her son were sleeping in their hut, the appellant/accused poured kerosene upon Leelaben and set her ablaze. As a result, Leelaben received severe burn injuries and she was taken to the Civil Hospital, Palanpur. On 04.12.2004, Leelaben succumbed to the injuries, and her son received burn injuries to the extent of 10 to 12%.

(ii) On 05.12.2004, the complaint was filed by PW-1, Geetaben (sister of Leelaben). On the basis of the complaint, the investigating officer carried out the investigation and during the course of the investigation, the statement of the witnesses were recorded, the evidence was collected and thereafter the chargesheet was filed against both the accused persons. The charges were framed for offences punishable under Sections 302, 307, 436, 34, 120 (b) of the IPC and Section 135 of the Bombay Police Act, 1951.

(iii) The Trial Court acquitted both the accused persons, mainly on the ground that there are discrepancies in three dying declarations given by Leelaben, the deceased.

(iv) The State of Gujarat challenged the order of acquittal by filing a Criminal Appeal before the High Court. The High Court vide the impugned order allowed the appeal qua the appellant/accused and thereby, set aside the order of acquittal passed by the concerned trial court. The High Court convicted the appellant/accused for committing the offence punishable under Section 302 of the IPC.

3. Against the impugned order passed by the High Court, the appellant/accused has preferred the present appeal.

4. Learned Counsel appearing for the appellant/accused mainly contended that the case of the prosecution rests primarily on the dying declaration given by the deceased. However, there are major discrepancies in the story put forward by the prosecution. In fact, version of the complainant (PW-1), Kalubhai Lakhuji (PW-4, husband of Leelaben), as well as other documentary evidence contain major discrepancies, inconsistencies and material contradictions. Thus, the trial court has rightly acquitted the appellant/accused, despite which, the High Court has, substantially relied upon the deposition given by Dr. Shivrambhai Nagarbhai Patel, (PW-3, Incharge Medical Officer) as well as relied upon the Yadi given by the said Doctor to the Police, which mentioned the history given by the deceased before the said witness, and thereby recorded the order of conviction of the appellant/accused. Learned Counsel submitted that the High Court has committed grave error while relying upon the Medical Certificates of Leelaben and Ganesh (Exhibit 20 and 21, respectively).

5. It is further submitted that because there are major discrepancies in the three dying declarations given by the deceased, the trial court has acquitted the appellant/accused by giving benefit of doubt to the appella