The dying declaration recorded by the Executive Magistrate was found to be reliable and sufficient to support the conviction under IPC Sections 302 and 506(1).

JUDGMENT :

A.Y. KOGJE, J.

1. The present appeal is preferred by the appellant-convict against the judgment and order of conviction dated 30.04.2016 passed in Sessions Case No. 242 of 2014 by the Additional Sessions Judge, Court No. 24, City Sessions Court, Ahmedabad.

2. By the impugned judgment and order of the conviction, the appellant-convict is convicted for the offence punishable under Section 302 and 506(1) of the Indian Penal Code (hereinafter referred to as the “IPC”) and is sentenced to undergo life imprisonment.

3. Learned advocate for the appellant submitted that the Sessions Court has committed an error in not tak into consideration the vardhy received by Khokhra Police Station from L.G. Hospital which came to be registered by P.S.O. informing that the deceased-Sunitaben has committed a suicide and is admitted burns ward of L.G. Hospital.

3.1 It is submitted that as the prosecution was launch on the basis of information of suicide, the appellant-convict cannot be convicted for the offence under Section 302 of the IPC.

3.2 It is submitted that the appellant was only living with the deceased-Sunitaben and her husband-Gatubhai Dhanjibhai Chauhan, who has not been at all investigated. Therefore, entire prosecution case is doubtful.

3.3 Learned advocate has tried to indicate that the deceased was earlier married to one Bachubhai of Vageda Village and while she was still married had eloped with Gatubhai and married Gatubhai. Both Gatubhai and deceased were living as husband and wife when the appellant started residing with both of them, and therefore, the role of other persons also required to be investigated.

3.4 It is submitted that there was no motive for the appellant to commit murder of the deceased, as there was no enmity or ill-feeling towards her, and therefore, there is a more probability of suicide being committed rather than murder.

3.5 It is submitted that the place where the incident took place there are bound to be eye-witnesses, but no eye-witnesses have been investigated or examined during the trial.

3.6 It is submitted that none of the panch witnesses have supported the case of the prosecution, and therefore, the case of the prosecution should be doubted.

3.7 It is submitted that the cause of death is also attributed to septicemia, and therefore, considering the date of incident and the death of the deceased, the death has resulted on account of lack of medical treatment.

3.8 Learned advocate has relied upon the decision of High Court of Tamil Nadu in case of S. Panneerselvam vs. State of Tamil Nadu in Criminal Appeal No. 1167 of 2006 and Criminal Appeal No. 1168 of 2006 dated 15.05.2008 in support of her case that the dying declaration has to be construed appropriately by taking into consideration the version of the other witnesses.

4. As against this, learned APP submitted that non error is committed. The procedure for recording the dying declaration was followed accurately and the same is executed by the Executive Magistrate, who recorded the dying declaration, who has no personal enmity to falsely involved the appellant-accused. Therefore, there is no reason to disbelieve the dying declaration recorded accurately.

4.1 It is submitted that ground of the appellant-accused regarding the ward by given to the Police Station indicating about the suicide cannot be treated to be an evidence better than the dying declaration.

5. In rejoinder, learned advocate for the appellant submitted that the reason for doubting the dying declaration is because the Executive Magistrate has stated that the thumb impression of the deceased was taken on the dying declaration, whereas, in his deposition, this witness has stated that there were bandages all over the body when the dying declaration was recorded, and therefore, there was no scope of applying the thumb impression.

6. Having heard the learned advocate for the parties and having perused the documents on record, the incident took place on 17.05.2012 where allegedly the deceased was s