Point of Law: It is settled principle of criminal justice system that if a perpetrator of crime is sat free, in that case, the concept of deterrent theory may not work and there might be adverse effect upon the society.

JUDGMENT :

Introduction:

1. Much ink has been flown on evaluation and appreciation of evidence on a written dying declaration, but, a very few occasions have arisen, wherein the Court has an opportunity to examine and assess the evidence adduced by the prosecution on oral dying declaration. Present is one such case.

1.1 The principle of “Leterm Mortem” which means, “words said before death”, in a legal term it is called as ‘Dying Declaration’. The word “Dying Declaration” means a statement, written or verbal, of relevant facts made by a person, who is dead. It is the declaration of a person who had died explaining the circumstances of his death. This is based on the maxim ‘Nemo Mariturus Presumuntur Mentri” i.e. a man will not meet his maker with lie on his mouth. Our Indian law recognizes the fact that ‘a dying man seldom lies’ or ‘truth sits upon the lips of a dying man.’ It is an exception to the principle of excluding hearsay evidence rule. Here the person (victim) is the only eye-witness to the crime, and exclusion of his/her statement would tend to defeat the ends of justice. The respective section does not lay down any standards or measures which need to be followed or considered by the judicial authority while delivering the judgment. This gives wider discretion to the judges, who again, based on the facts, circumstances and personal opinion exposing it to the rule of subjectivity. A dying declaration is considered to be credible and trustworthy based upon the general belief that most people who know that they are about to die, do not lie.

1.2 Like churning out the nectar, the role of judiciary is alike, viz. churning out the truth. Keeping all such aspects in mind, let us discuss and evaluate the merits of the case on hand.

Prelude:

2. The present appeal under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (herein after referred to as “the Code”) is filed by the appellant – State of Gujarat and Criminal Revision Application No. 450 of 2007 is filed by the applicant - original complainant under Section 401 of the Code, challenging the judgment and order dated 10.07.2007, passed in Sessions Case No. 29 of 2004, by the learned Presiding Officer and Additional Sessions Judge, Fast Track Court No. 1, Dhrangadhra, recording the acquittal of the respondents - original accused.

Factual matrix:

3. Marriage of deceased Ramilaben, the sister of original complainant – Dhanabhai Chaturbhai was solemnized with accused No.1 – Laxmanji @ Lakhabhai Pratapbhai Thakor, resident of Vadgam of Dasada Taluka, prior to about three years of the incident in question. Out of the wedlock, they have one child named Rahul, aged one and a half years at the relevant time. That after the marriage, victim deceased Ramilaben was residing in her matrimonial house in a joint family at Dasada. That, on 19.08.2004 at about 5:30 p.m., the complainant got the telephonic message from accused No. 2 – Pratap Valabhai Thakor, the father-in-law of the deceased, that his younger sister was burnt and asked him to come immediately and they were taking her to the hospital and, accordingly, the complainant left for Vadgam and when he reached at Shankheshwar, he saw father-in-law and the uncle-in-law going in a white colour car, and hence, the complainant stopped the said car and found his sister lying in the middle seat in a burnt condition and on inquiry made by the complainant, her sister informed him that her husband, mother-in-law and the father-in-law demanded and asked her to bring Rs.10,000/- and pressurized her to bring money from her parental home, and thereby caused physical and mental harassment to her. They harassed her by pointing out mistakes in household works. That, earlier she had brought Rs.5,000/- and hence, on being instigated by her in-laws, her husband got infuriated and beat her up, and hence, in frustration, she went to her home and sa