Dying declarations are admissible as sole evidence for conviction if credible; mere acquittal by trial court can be overturned if found perverse.

JUDGMENT :

A.S. SUPEHIA, J.

1. Vide order dated 04.09.2023, after hearing the learned Advocates for the respective parties and on analysis of the evidence, oral as well as documentary and on perusal of the judgment and order of the trial Court, we had recorded the guilt of accused No.1 - Prakash @ Piddu Mithubhai Mulani. We had set aside the judgment and order passed by the trial Court acquitting the accused and the matter was kept for hearing on the question whether the conviction should be recorded under Sections 302 , 304 Part-I or 304 Part-II of the INDIAN PENAL CODE , 1806 (IPC). Today, we have again extended the opportunity to the learned advocate Dr.Hardik K. Raval appearing for the accused no.1 to make his submissions.

2. On 04.09.2023, the following order was passed:

"1. The present appeal has been preferred by the appellant - State under Section 378 of the Code of Criminal Procedure, 1973 (herein after referred to as the “Cr.P.C”) challenging the judgment and order dated 08.04.1996 passed by Additional Sessions Judge, Kachchh-Bhuj in Sessions Case No.93 of 1994, whereby the respondents have been acquitted for the offence punishable under Sections 302 and 114 of the Indian Penal Code, 1860 (herein after referred to as the “IPC”).

2. It is reported that accused no.2 – Raju Mithubhai Mulani has already passed away, and therefore, the appeal has abated qua him. Thus, the appeal is only confined to the accused no.1-Prakash @ Piddu Muthubhai Mulani.

3. At the outset, learned APP has submitted that the judgment of the Trial Court recording the acquittal of the accused is perverse and suffers from the vice of non-application of mind since the Trial Court has failed to appreciate the dying declaration of the deceased as well as the evidence of the Executive Magistrate and the Doctors. While referring to the deposition of P.W.6 Chaitanyakumar Somalal Kansara, who was examined at Exh.21 on behalf of the prosecution, she has submitted that he has supported the case of prosecution and has categorically deposed that after recording the statement of the deceased implicating the accused, he has recorded the dying declaration. She has submitted that depositions of P.W.6 as well as P.W.11 Dr.Dayalbhai Mavjibhai Bhadra, who was examined at Exh.34 on behalf of the prosecution would reveal that the deceased was in fit state of mind and conscious. It is submitted that the accused no.1 had inflicted a blow on the vital part of the deceased on his neck, cutting the vital vein, which supplies the blood which resulted into death and hence, the Trial Court, without appreciating the aforesaid evidence, has committed an error in acquitting the accused.

4. Learned APP has further referred to the dying declaration at Exh.22, wherein the deceased had categorically named the three accused including the accused no.1 by his nick name Piddu, she has further referred to the complaint given by the deceased Exh.51 on 19.05.1994 naming the accused and the manner in which he was assaulted.

5. Learned APP has further invited attention of this Court to the observations made by the Trial Court in its judgment and submitted that the Trial Court has incorrectly observed that P.W.11 – Dr.Dayalbhai Mavjibhai Bhadra and P.W.14. Dr.Jethalal Govind Padshubiya were required to be examined in affirming the complicity of the accused. She has submitted that such observation is incorrect on the face of record, as P.W.14 - Dr.Jethalal Govind Padshubiya was examined at Exh.46 on behalf of the prosecution, whereas P.W.11 – Dr.Dayalbhai Mavjibhai Bhadra was examined at Exh.34 on behalf of the prosecution. T