IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL APPEAL NO. 843 of 2003 FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE GITA GOPI Sd/-

and HONOURABLE MR.JUSTICE D. M. VYAS Sd/-

==========================================================

Approved for Reporting Yes No √

==========================================================

STATE OF GUJARAT Versus VADHA SUTAR ISHAK IBRAHIM & ORS.

==========================================================

Appearance:

MR HARDIK MEHTA APP for the Appellant(s) No. 1 MR PM LAKHANI(1326) for the Opponent(s)/Respondent(s) No. 1,2,3 MRS R P LAKHANI(3811) for the Opponent(s)/Respondent(s) No. 1,2,3 NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1,2 UNSERVED EXPIRED (N) for the Opponent(s)/Respondent(s) No. 3 ==========================================================

CORAM:HONOURABLE MS. JUSTICE GITA GOPI and HONOURABLE MR.JUSTICE D. M. VYAS Date : 07/02/2026

ORAL JUDGMENT

(PER : HONOURABLE MS. JUSTICE GITA GOPI)

1. The State has challenged the judgment of acquittal dated 31.03.2003 passed by learned Additional Sessions Judge, Fast- Track Court, Jamnagar in Sessions Case No.82 of 1995. Three respondents were put to trial for the offence under Section 302 and Section 34 of the Indian Penal Code (for short, ‘I.P.C’).

2. Respondent no.3 died as per the report of Chief Judicial Magistrate, Jamnagar. The date of death is 17.06.2010.

Hence, the appeal stands abated against respondent no.3.

3. The charge framed was against the brother-in-law, mother-in-law and sister-in-law with the facts that in furtherance of the common intention, on 03.04.1995, at about 5’0 clock, in the residential house, Hanifaben was burnt to death by pouring kerosene.

4. Learned APP Mr. Hardik Mehta submitted that the husband was serving at Dubai and the deceased was residing with the accused. The quarrel was between the deceased and accused no.2 with regard to the preparation of the food and when the elder brother-in-law came to know about the quarrel, he came in the house and abused the deceased while she was sleeping on the cot, poured kerosene on her and all the three set her on fire. The deceased was taken to Irvin Hospital, Jamnagar where the complaint was recorded of the deceased and dying declaration was recorded of the Executive Magistrate. APP Mr. Mehta submitted that after 23 days, she succumbed to burns injuries and died.

4.1 According to APP Mr. Hardik Mehta, the dying declaration recorded by Executive Magistrate – Rasiklal Mudshankar Mehta as PW1 clearly shows that the patient was in fit state of mind to give dying declaration and the doctor had put an endorsement to that effect and she had clearly stated that she was burnt by her elder brother-in-law. The doctor – Bansidhar Gupta, who conducted the postmortem, has stated the cause of death. The cause of death, as per the P.M report, was cardio respiratory failure on account of burns and its complication. APP Mr. Mehta submitted that it was required to be appreciated by the trial Court Judge that the brother of the deceased on hearing the cry because of burnings to his sister had inflicted a stick blow on the head of accused no.2 for which offence under Section 324 of the I.P.C was registered and the learned trial Court Judge had wrongly drawn the adverse inference of the dying declaration being tutored and has committed a grave error in acquitting the accused.

4.2 The prosecution had examined nine witnesses and has relied upon almost 24 documentary evidence. PW2, PW3, PW4, PW5 and PW6 had been declared hostile. They had not supported the prosecution case. The learned trial Court Judge had found contradiction in the dying declaration and the complaint of the deceased. The dying declaration of deceased Hanifaben was recorded by the Executive Magistrate prior to the filing of the complaint. The dying declaration was recorded during the night hours at 8:30, wherein she had got it recorded that her elder brother-in-law had burnt her and while before the police, she had shown the p