1994 Supreme(Guj) 232

Gujarat High Court
Judgename :C.V.Jani, K.J.VAIDYA
STATE OF GUJARAT - Appellant
Versus
DAHYABHAI BHIKHABHAI PATEL - Respondent
S.C.A. 897 of 1993
Decided On : 08/24/1994

Headnote:Criminal Trial — Murder case — Acquittal of accused — Appeal against — Serious lapses on the part of Investigating agency — Failure to record dying declaration — Testimony of alleged sole eye witness not inspiring confidence — Public Prosecutor also supporting acquittal — Held, acquittal need no interference.

       Evidence Act, 1872 — Sec. 34 — Dying declaration — Evidentiary value — Explained.

       The Dying Declaration is considered to be one of the most important piece of evidence, an essential material link connecting the accused with the crime alleged against him that is to say even if for whatever reasons no other evidence direct or circumstantial was forthcoming on the record, only the Dying Declaration can still be the basis for recording the order of conviction and sentence and accordingly be useful asset : both in the first instance to the investigating agency in detecting the crime and to arrest the assailant, and thereafter, for the Court of Law to do the justice.

       [Para 5.1]

       Criminal Trial — Role of Investigating agency — Failure to record statement of person who recorded FIR — Planting of another person as eye witness whose name did not appear in FIR — Failure to record dying declaration — Role deterimental to the case — Deprecated — Authorities directed to take suitable action against recalcitrant officers.

       On the one hand the Investigating Officer failed to record the statement of Arvind Manilal, which was his first duty to record, and on the other hand, to introduce the evidence of Ramanbhai Chaturbhai, who nowhere figures on the record as an eye-witness and yet he is sought to be brought in as an eye-witness is indeed quite astonishing and typical unscrupulous police way of doing and undoing the things! If such investigations are permitted, it would play havoc with the Administration of Justice in asmuch as the real offenders may go scot free and sometimes even an innocent person may be roped in and get punished at the hands of Court of Law! To countenance lightly such gross remissness, we believe would be to become a party to a conspiracy against the cause of justice itself and indeed we cannot be a party to such things.

       [Para 5.3]

       Police Manual — Rule 173 — Recording of dying declaration — Investigating officer informed by Doctor about the critical condition of deceased and asked to arrange for recording of dying declaration — No efforts made for recording of dying declaration — Held, remissness on the part of Investigating officer amounts to dereliction of duty.

       The remissness on the part of the Investigating Officer in not recording the Dying Declaration despite being informed by Dr. Lakhmani clearly highlights and exposes the situation as to what sorry pass the investigation of the serious case like the murder has come to where the Court is required to draw the attention of the higher-ups in the State Government to impress upon all the Investigating Officers as regard their duty in the matter of recording the Dying Declaration on the basis of the guidelines laid down on Rule 173 of the Police Manual. It is really unfortunate that despite the exhaustive guidelines given in Rule 173 in matter of recording the Dying Declaration under Chapter V of the Police Manual which pertains to "Detailed procedure regarding investigation"

       [Para 5.2]

       Professional Ethics — Medical Doctor — Duty to record dying declaration in cases of medico-legal cases — Doctor though informed Investigating Officer but failed to record dying declaration particularly when he was aware about the critical condition of deceased — Held, he has miserably failed in his duty.

       It was indeed the foremost duty of Dr. Lakhmani to have himself recorded the Dying Declaration of injured Chandubhai and yet to utter shock and surprise, he has failed to perform the same ! This patent inaction on the part of Doctor in not himself recording the Dying Declaration is indeed a very serious dereliction of duty because the golden opportunity he had at his hand available to take down the same whereby he would have collected usefully the name of the assailant. Doctor has miserably failed to discharge his paramount professional duty of himself recording the Dying Declaration more particularly when the injured was in a critical condition required to be emergently operated upon and indeed what ought we know as to whether after the operation he was or was not in a position to regain consciousness or even survive leaving any chance whatsoever for the Executive.

       [Para 5.1]