Gujarat High Court
Dhanji Bhimji Ahir vs State Of Gujarat on 10 April, 2026
NEUTRAL CITATION
R/CR.RA/6/2009 CAV JUDGMENT DATED: 10/04/2026
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Reserved On:- 01/04/2026
Pronounced On : 10/04/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 6 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
√
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DHANJI BHIMJI AHIR
Versus
STATE OF GUJARAT
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Appearance:
MR BHARAT K DAVE(246) for the Applicant(s) No. 1
MR J M PANCHAL(529) for the Applicant(s) No. 1
MR K J PANCHAL(2422) for the Applicant(s) No. 1
MR ROHAN RAVAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
CAV JUDGMENT
[1.0] Present criminal revision application under Section 397 read
with Section 401 of the Code of Criminal Procedure, 1973
(hereinafter referred to as “CrPC“) has been preferred by the
applicant herein – original accused No.2 – Dhanji Bhimji Ahir
requesting to quash and set aside the order dated 01.01.2009
passed below Exh.50 by the learned Additional Sessions Judge
and Presiding Officer, 4th Fast Track Court, Gandhidham –
Kachchh in Sessions Case No.38 of 2002, whereby the learned
Judge rejected the discharge application filed by the applicant
under Section 227 of the CrPC.
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FACTUAL MATRIX:
[2.0] A complaint being I-CR No.14/2002 came to be filed on
21.01.2002 against the present applicant and another for the
offence punishable under Sections 364, 307, 302, 323, 504 and
114 of the Indian Penal Code, 1860 (for short “IPC“) and Sections
3(2)(v) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act alleging that one Pratapbhai
Bhimjibhai Damor was brought in a burnt condition to Rambaug
Hospital on 21.02.2002 in the evening at about 5.15 p.m. It is the
case of prosecution that Medical Officer of Government
Hospital recorded statement of the injured wherein the injured
person has stated that accused No.1 accompanied him in his
Maruti Car No.GJ-12-P-2064 and accused No.1 sprinkled petrol
and set him at fire by means of match stick and ran away.
[2.1] After carrying out investigation, the Investigating Officer filed
the charge-sheet and as the case was sessions triable, it came to
be committed to the Court of learned Additional Sessions Judge
and numbered as Sessions Case No.38 of 2002. The applicant
and accused No.1 filed an application Exh.50 under Section 227
of the CrPC seeking discharge which came to be dismissed by
the learned Additional Sessions Judge vide the impugned
judgment and order. Hence, being aggrieved and dissatisfied,
the applicant has preferred the present revision application.
SUBMISSIONS ON BEHALF OF REVISIONIST:
[3.0] Learned Senior Advocate Mr. J.M. Panchal assisted by learned
advocate Mr. Bharat K. Dave appearing for the applicant has
submitted that the learned Judge has committed an error in
rejecting the discharge application filed by the applicantPage 2 of 30
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without assigning any reason and/or the reason assigned by the
learned Judge is not germane in law and discharge application is
not decided in the correct perspective of law and on irrelevant
considerations like ulterior motive and prolonging trial and in
two lines the order rejecting discharge application is passed. He
has further submitted that the learned Judge failed to consider
the improbable story narrated in the FIR and accepted the same
and hence, question does not arise to believe that the deceased
was kidnapped in the car and that too after kidnapping the
deceased, he was brought to his home. Even, in the first wardi
given to the police station by the Doctor, nowhere is stated
about the involvement of the present applicant and
involvement of only accused No.1 is found. He has further
submitted that in second dying declaration involvement of
present applicant has surfaced but if said second dying
declaration is considered, it appears that the applicant was
under the influence of alcohol which was beyond the
permissible limit. In this regard, he has relied on the post-
mortem report more particularly column No.17 wherein 86%
burn injuries are mentioned and therefore, question of
deceased being unconscious does not arise. Not only that, one
rickshaw driver who brought the deceased to hospital has not
stated anything about the involvement of the present applicant
and even nowhere the name of present applicant is specifically
stated.
[3.1] He has further submitted that the learned Judge failed to
consider the infirmities in the dying declaration as incident took
place on 21.02.2002 between 15.30 hours to 16.30 hours and
deceased died on 22.02.2002 at 1.30 a.m. i.e. after about 9 to 10Page 3 of 30
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hours. Further, in two dying declarations there are
inconsistencies as, in one dying declaration it is coming forth
that the deceased was conscious which is doubtful as the
deceased was not in fit mental state to state anything when
brought to the hospital and therefore, said dying declaration
does not inspire any confidence with regard to the case of
prosecution as regards involvement of the present applicant.
Further, in the first wardi, name of applicant is not mentioned
and even there was no motive for the applicant to kill the
deceased. Thus, the learned Judge has failed to consider
infirmities in the dying declaration and material collected during
the investigation is not sufficient to put the applicant – accused
No.2 on trial.
[3.2] He has further submitted that the subsequent allegation against
the applicant is that he caught hold of the deceased and
accused No.1 sprinkled petrol upon him however, there is no
any incriminating material and/or scientific evidence against the
applicant has come on record. He has relied on the decision of
the Hon’ble Supreme Court in the case of Yogesh @ Sachin
Jagdish Joshi vs. State of Maharashtra reported in 2008 CrLJ
3872 and argued about the scope of discharge. He has also
relied on the decision in the case of Sanjay Kumar Rai vs. State
of Uttar Pradesh reported in (2022)15 SCC 720 and submitted
that the Court has to consider the broad probabilities, total
effect of evidence and documents produced and the basic
infirmities appearing in the case and therefore, he has
submitted that dying declaration is required to be considered
while framing the charge. He has also relied on the decision of
Hon’ble Supreme Court in the case of Shiv Pratap Singh RanaPage 4 of 30
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vs. State of Madhya Pradesh and Another reported in (2024)8
SCC 313 and submitted that if two statements recorded before
the police under Section 161 of the CrPC and the infirmities in
two statements then the question does not arise to put the
applicant – accused on trial more particularly when the story of
prosecution is improbable.
[3.3] Further, he has submitted that even the offence is not properly
investigated and no any evidence is collected to substantiate as
to for what reason demand of Rs.10 lakh was made or no any
document is executed for house. He has further submitted that
there was no motive for the present applicant – accused and no
any evidence is collected in this regard. Not only that, no
incriminating material is collected from the alleged car involved
in the offence to prove the complicity of the present applicant –
accused in the offence and merely based on statement, present
applicant is implicated in the offence and even otherwise, in
case of more than one dying declaration having contradictions
in version, Court has to give benefit of doubt to the accused. In
this regard, he has relied on the decision of Hon’ble Supreme
Court in the case of Sanjay vs. State of Maharashtra reported
in (2007)9 SCC 148 and in the case of Kashi Vishwanath vs.
State of Karnataka reported in (2013)7 SCC 162 and submitted
that dying declaration ought to have been voluntary and
truthful. Herein, dying declaration is doubtful and he has further
argued that in the present case, section 226 of the CrPC is not
complied with and without following the said provision, learned
Judge has proceeded further and mechanically rejected the
discharge application of the applicant and framed the charge.
He has also relied on the decision of the Hon’ble Supreme CourtPage 5 of 30
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in the case of Anokhilal vs. State of Madhya Pradesh reported
in 2019 INSC 1399 and submitted that right to fair trial is
fundamental right of the applicant – accused, which has not
been provided by the learned Judge before framing the charge
against the present applicant. Hence, he has requested to allow
the present revision application and discharge the present
applicant – accused No.2.
SUBMISSIONS ON BEHALF OF RESPONDENT – STATE:
[4.0] Learned APP has vehemently opposed the present application
by supporting the impugned judgment and order passed by the
learned Judge and submitted that only with a view to protract
or prolong the trial, the applicant preferred the discharge
application which has been rightly rejected by the learned Judge
which does not call for any interference at the hands of this
Court. He has submitted that the applicant has committed
serious offence which has been established in the charge-sheet
filed against the applicant.
[4.1] He has further submitted that the charge is framed on
01.01.2009 and hence, question does not arise to quash and set
aside the charge as ample opportunity was given to the
applicant and earlier one discharge application Exh.3 came to be
dismissed against which Criminal Revision Application
No.804/2006 was filed before the coordinate Bench of this
Court by the applicant which was rejected on 04.05.2007 and
after a long span of two years, another application Exh.4
seeking discharge was filed by the applicant which also came to
be rejected by the learned Sessions Judge by a reasoned order
and hence, only with ulterior motive just with a view to protractPage 6 of 30
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the litigation, discharge application came to be filed by the
applicant and hence, he has requested to dismiss the present
application.
[4.2] He has further submitted that the role of the present applicant
is clear and his name is specifically mentioned in alongwith
other co-accused in the FIR and during the course of hearing it is
submitted that the co-accused i.e. accused No.1 has expired.
Hence, under the pretext of fair trial on one or another pretext,
trial is being protracted and prosecution case is adversely affect
due to such delay. Further, ample evidence in form of dying
declaration is collected during the investigation and motive is
clear as there was illicit relationship between wife of deceased
and accused No.1 and present applicant was having motive of
getting posted at the place of deceased and having proximity
and close relationship with accused No.1 who happens to be the
Sarpanch of said village. Hence, considering the scope of
revision, he has requested to dismiss the present application.
FINDING AND ANALYSIS:
[5.0] Having heard learned advocates appearing for the respective
parties and perusing the record, it appears that the complaint is
filed at the instance of deceased Pratapbhai Bhimjibhai, wherein
it is alleged that accused No.1 Govind Samat Ahir – Chavda had
sprinkled petrol on the deceased and set the deceased ablaze
while the present applicant – accused No.2 was in company of
accused No.1 and caught hold of the deceased. Further, as per
the prosecution case, alleged incident took place on 21.02.2002
at around 3.30 p.m. while deceased left his Taluka Panchayat
Office, Bhachau by his Maruti Car No.GJ-12-P-2064, at that time,Page 7 of 30
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accused No.1 and present applicant were standing nearby bus-
stop and they stopped the car and deceased was forcibly made
to sit on the rear seat of the car and car was driven by accused
No.1 and the deceased was taken on the backyard of his
residential home at Adipur and at about approximately 10 feet,
present applicant caught hold of the deceased and accused No.1
sprinkled petrol and lit the match stick and set the deceased
ablaze. Thereafter, the deceased was initially shifted to
Rambaug Hospital, Gandhidham for treatment and the Medical
Officer recorded the history and thereafter, the deceased was
shifted for further treatment to G.K. General Hospital, Bhuj. The
dying declaration of the deceased came to be recorded and
complaint was recorded initially for the offences punishable
under Sections 307, 365, 323, 504 and 114 of the IPC read with
Section 3(2)(v) of the Atrocities Act. During the treatment, the
deceased succumbed to burn injuries and therefore,
subsequently charge under Section 302 of the IPC came to be
added and charge-sheet is filed against accused persons after
investigation.
[5.1] Going through the record, it appears that earlier discharge
application Exh.3 came to be filed by the applicant which came
to be dismissed and against the said dismissal, applicant
preferred Criminal Revision Application No.804/2006 which
came to be rejected by the coordinate Bench on 04.05.2007 by a
reasoned order. After dismissal of second discharge application,
charge is framed for the offence under Sections 302, 365, 323,
504 and 114 of the IPC read with Section 3(2)(v) of the Atrocity
Act on 01.01.2009. It further appears that present revision
application is filed mainly on three grounds.
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(i) There are more than one inconsistent dying declarations.
(ii) Considering the burn injuries and the fact that deceased
was under the influence of alcohol at the time of incident,
the deceased was not in fit mental state of mind.
(iii) Learned Sessions Judge failed to comply with the
provisions of section 226 of the CrPC as prosecution failed
to open the case and straightway charge came to be
framed.
SCOPE OF DISCHARGE:
Prior to adverting to the submissions made on behalf of
the respective parties, it would be expedient to discuss about
the scope of discharge.
[6.0] Under Section 227 of the CrPC, after considering the entire
material placed on record and after hearing the arguments of
the accused as well as the prosecution, if the Court reaches to
the conclusion that there is no sufficient ground for proceeding
against the accused and that the commencement of trial will
only waste the valuable time of the Court, the Court may
discharge the accused. The Hon’ble Supreme Court in the case
of P. Vijayan vs. State of Kerala [(2010) 2 SCC 135] and Ram
Prakash Chaddha vs. The State Of Uttar Pradesh [(2024)10
SCC 651] observed and held that at the time of framing of
charge, Court has to consider the following aspects.
(i) The Judge while considering the question of framing the
charges under Section 227 of the Cr.P.C. has the
undoubted power to sift and weigh the evidence for the
limited purpose of finding out whether or not a primaPage 9 of 30
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facie case against the accused has been made out. The
test to determine prima facie case would depend upon
the facts of each case.
(ii) Where the materials placed before the Court disclose
grave suspicion against the accused which has not been
properly explained, the Court will be fully justified in
framing a charge and proceeding with the trial.
(iii) The Court cannot act merely as a Post Office or a
mouthpiece of the prosecution but has to consider the
broad probabilities of the case, the total effect of the
evidence and the documents produced before the Court,
any basic infirmities etc. However, at this stage, there
cannot be a roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was conducting a
trial.
(iv) If on the basis of the material on record, the Court could
form an opinion that the accused might have committed
offence, it can frame the charge, though for conviction
the conclusion is required to be proved beyond
reasonable doubt that the accused has committed the
offence.
(v) At the time of framing of the charges, the probative value
of the material on record cannot be gone into but before
framing a charge the Court must apply its judicial mind on
the material placed on record and must be satisfied that
the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228 of the CrPC, the
Court is required to evaluate the material and documents
on record with a view to find out if the facts emergingPage 10 of 30
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therefrom taken at their face value discloses the
existence of all the ingredients constituting the alleged
offence. For this limited purpose, sift the evidence as it
cannot be expected even at that initial stage to accept all
that the prosecution states as gospel truth even if it is
opposed to common sense or the broad probabilities of
the case.
(vii) If two views are possible and one of them gives rise to
suspicion only, as distinguished from grave suspicion, the
trial Judge will be empowered to discharge the accused
and at this stage, he is not to see whether the trial will
end in conviction or acquittal.
(viii) If the evidence, which the prosecutor proposes to adduce
to prove the guilt of the accused, even if fully accepted
before it is challenged in cross – examination or rebutted
by the defence evidence, if any, ‘cannot show that the
accused committed offence, then, there will be no
sufficient ground for proceeding with the trial.
(ix) It is open to the accused to explain away the materials
giving rise to the grave suspicion.
(x) There must exist some materials for entertaining the
strong suspicion which can form the basis for drawing up a
charge and refusing to discharge the accused.
[6.1] The above parameters which govern the exercise of jurisdiction
have found expression in several decisions of the Hon’ble
Supreme Court. The Hon’ble Supreme Court in the case of The
State of Rajasthan vs. Ashok Kashyap reported in (2021)11
SCC 191 and State of Karnataka vs. M.R. Hiremath [(2019)7
SCC 515] has observed that at the stage of considering an
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application for discharge, the Court must proceed on the
assumption that the material which has been brought on record
by the prosecution should be true and the Court should
evaluate the material in order to determine whether the facts
emerging from the material, taken on its face value discloses
the existence of the ingredients necessary to constitute the
offence. It is also observed that at the stage of discharge, the
probative value of the materials has to be gone into and the
Court is not expected to go deep into the matter. Whereas what
is needed to be considered is whether there is a ground for
convicting the accused has been made out. To put it differently,
if the Court thinks that the accused might have committed the
offence on the basis of the materials on record on its probative
value, it can frame the charge but for the conviction of the
accused the Court should come to the conclusion that the
accused has committed the offence. Hon’ble Apex Court further
observed in this case that the law does not permit a mini trial at
the stage of discharge. The scope of discharge is very limited. At
the stage of framing of charge, the prosecution merely needs to
display a prima facie case qua the accused from the material
available on record and trial may thereafter commence.
[6.2] However, at the stage of deciding a discharge application, the
accused may opt to refer to and rely upon sterling quality
evidence to seek his discharge, and if, on the basis of such
unimpeachable record, the Judge is satisfied on the aforesaid
legal precepts that the accused is entitled to an absolute
exoneration from the alleged crime, it is well within the law for
the accused to be discharged the settled position of law is that
the Judge while considering the question of framing the
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charges under the said section has the undoubted power to sift
and weigh the evidence for the limited purpose of finding out
whether or not a prima facie case against the accused has been
made out and whether the materials placed before the Court
discloses grave suspicion against the accused which has not
been properly explained to the Court, then in such a case the
Court will be fully justified in framing the charge and proceed
with the trial.
[6.3] On other hand, if the Judge is satisfied that the evidence
produced before the Court gives rise to some suspicion but not
grave suspicion then the Judge will be fully justified in
discharging the accused. At this stage it is appropriate to refer
to the decision of the Hon’ble Supreme Court in the case of
Sajjan Kumar vs. CBI [(2010)9 SCC 368] wherein it is settled
that at the time of framing of charge, accused is not concerned
with the proof and guilt or sufficiency of evidence for
conviction. In the case of State of Bihar vs. Ramesh Singh
[(1977)4 SCC 39] and subsequently in the case of Union Of
India vs Prafulla Kumar Samal & Anr. [(1979)3 SCC 4], the
Supreme Court has clarified the test as to whether material on
record taken at its face value discloses the essential ingredients
of the alleged offence and gives rise to direct or grave suspicion
against the accused. At the same time, the Supreme Court
expressly cautioned against conducting roving inquiry or weigh
the evidence as if at trial. Meaning thereby, at the time of
framing of charge, mini trial or roving inquiry is not permissible.
(i) INCONSISTENCIES IN DYING DECLARATION:-
[6.4] Now, in aforesaid background, the contentions raised by the
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applicant that, there is no sufficient ground to prosecute or to
put the accused on trial considering the inconsistencies and
improbable evidence on the record is mainly on the ground that
in the first dying declaration, which is in the form of history
given before the Medical Officer of Rambaug Hospital,
Gandhidham and pursuant to which wardi was given to Adipur
Police Station wherein no name is given and history is given as,
“petrol thrown on him by somebody”. Thereafter, deceased was
shifted to G.K. General Hospital where he had given his second
dying declaration which was recorded by the Executive
Magistrate wherein he has stated about the involvement of
present applicant i.e. accused No.2 and accused No.1.
Thereafter, the complaint was registered. In the complaint also,
he has stated about the involvement of two accused and
reiterated the same facts of dying declaration recorded before
the Executive Magistrate. In aforesaid two documents namely
the complaint and dying declaration, allegations with specific
role and involvement of accused No.1 and accused No.2 are
made.
[6.5] Learned Senior Advocate has further drawn attention to the
statement of one Habib Ismail Chada who is serving as
Dispensary Servant in Rambaug Hospital, Gandhidham, who has
stated that he was present at the time when Dr. Makwana was
giving treatment to the deceased and at that time Dr. Makwana
had asked the deceased about the incident to which the
deceased stated about the involvement of one Govind Chavda
(accused No.1) and statement of Dayal Jayram Udasi who was in
the company of deceased in rickshaw while the deceased was
shifted to Rambaug Hospital and in his statement the saidPage 14 of 30
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witness has stated about the involvement of one “Aayar”.
Statement of aforesaid two witnesses are recorded on
24.02.2002 and another statement on same day is recorded by
Jagdish Satyanarayan Damor, who was in the company of
deceased while deceased was being shifted from Gandhidham
to G.K. General Hospital, Bhuj in ambulance and he has stated
about involvement of two accused. If we peruse the record it
appears that on 21.02.2002, incident took place between 15.30
p.m. to 16.30 p.m. First wardi was given to Adipur Police Station
on 21.02.2002 and pursuant to the said wardi, on the same day,
complaint came to be registered which is given by the deceased
and at 23.10 p.m., complaint came to be registered. On
21.02.2002, dying declaration was recorded between 7.35 p.m.
to 7.52 p.m. by the Executive Magistrate wherein the Doctor had
put his endorsement that deceased was in fit mental condition
and was able to give statement and after obtaining the fitness
endorsement, statement of deceased i.e. dying declaration was
recorded and thereafter, at 1.30 a.m. of 22.02.2002, deceased
succumbed to burn injuries and died.
[6.6] Thus, it is clear that the deceased was in fit mental condition
when he gave his statement before the Executive Magistrate,
which was prior in point of time and on the same line, the
complaint was also given by the deceased which was also prior
in point of time and after two days, statement of other
witnesses have been recorded by the police who were not
having any personal knowledge but were in the nature of
hearsay evidence. Hence, this Court is of considered view that
statement given by the deceased before the Executive
Magistrate was given in fit mental condition and was in earlier
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point of time and on the same line the complaint came to be
filed and subsequently, the deceased died. Hence, statements
of two witnesses recorded subsequently on 24.02.2002 are
irrelevant at this stage to consider as material / evidence for the
purpose of framing of charge because at the time of framing of
charge, Court has to consider whatever evidence is available in
legal and permissible form. It is evident that, in light of Section
32 of the Indian Evidence Act, the dying declaration recorded by
the Executive Magistrate after duly verifying the fitness of the
deceased and the subsequent complaint registered on its basis
are both relevant and admissible in evidence. Furthermore, the
two dying declarations / statements are consistent with each
other and said dying declarations are properly relied upon by
the learned Sessions Judge while framing the charge against the
present applicant.
[6.7] The principle on which the dying declaration is admissible in
defined in section 32(1) of the Indian Evidence Act which
provides that, when the statement is made by a person as to the
cause of his death, or as to any of the circumstances of the
transaction which resulted in his death, such statement is
relevant in every case. Such statements are relevant whether
the person who made them was or was not, at the time when
they were made, under expectation of death, and whatever may
be the nature of the proceeding in which the cause of his death
comes into question. The principle on which a dying declaration
is admissible in evidence is indicated in the Maxim “Nemo
Moriturus Praesumitur Mentire”, which means that a man will
not meet his maker with a lie in his mouth. Thus, it is clear that a
dying declaration may be relating to, a) As to the cause of death
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of the deceased b) As to “any of the circumstances of the
transaction” which resulted in the death of the deceased”. If we
look the dying declaration, it is dictated by the deceased and
names of accused including the present applicant is clearly
mentioned and his role is also stated that he had caught hold of
the deceased and dying declarations are relevant and admissible
evidence.
[6.8] Now, coming back to another statement given by the deceased
to Doctor and in turn Doctor has given a Wardi to Adipur Police
Station and is hearsay in nature and under Section 60 of the
Indian Evidence Act, hearsay evidence is not admissible and for
the sake of argument, if we consider the said document as dying
declaration, even though more than one dying declarations are
available on record and in that event what is essentially required
to be considered is the fitness and state of mind of the
deceased while he was getting recorded the statement / dying
declaration and consistent statement which inspires confidence
is required to be accepted and in this regard, law is very well
settled by the Hon’ble Supreme Court in the case of Dayaram
vs. State of Madhya Pradesh [AIR 2019 SC 5739] and Laxman
vs. State of Maharashtra [(2002)6 SCC 710] and as the FIR is
also given by the deceased and is prior in point of time and
thereafter the deceased succumbed to injuries at 1.30 a.m. is
also relevant and is required to be considered in view of the
decision of the Hon’ble Supreme Court in the case of Dharam
Pal vs. State of U.P. [(2008)17 SCC 337]. Even otherwise,
evidentiary value of the said two dying declarations is also
subject matter of trial and at the time of appreciation of
evidence, the Court has to consider it based on evidence
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adduced or produced by the prosecution on record
independently or in light of the supporting or corroborative
evidence and possibility cannot be ruled out that word “Ayar”
may be used as a dialect instead of “Ahir”. Hence, the argument
canvassed by the learned Senior Advocate for the applicant qua
inconsistency or improbability in dying declarations is not
accepted.
(ii) MENTAL FITNESS OF DECEASED WHILE MAKING
STATEMENT:-
[7.0] So far as second argument made by the learned Senior Advocate
Mr. Panchal on behalf of the applicant with regard to doubting
the mental fitness and mental state of deceased when he gave
the dying declaration is concerned, perusing the record, it
appears that Doctor has stated that while the deceased was
brought to Rambaug Hospital, Gandhidham, deceased was
conscious and was in fit mental condition. Not only that, doctor
has put an endorsement that at the time of recording the
statement, mental condition of deceased was fit and he was
able to give the statement and after receiving such
endorsement of the Doctor, the Executive Magistrate has
recorded the statement of deceased. Hence, deceased was in fit
mental condition to give the statement as stated earlier in
paragraph Nos.[6.5] to [6.7].
[7.1] Now, adverting the argument canvassed on behalf of the
applicant that as per the P.M. report, deceased was under the
influence of alcohol and percentage of ethyl alcohol was found
0.125 ml, which was beyond the permissible limit and hence,
deceased was not in fit mental state and was not able to givePage 18 of 30
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the statement is concerned, said argument is not acceptable at
this stage on more than one following grounds:
(i) The deceased was found in fit mental condition and when
he was shifted to hospital, he was conscious and doctor
has opined about his mental condition.
(ii) Even otherwise, presence of ethyl alcohol in blood
depends on various factors. The presence of alcohol is
mentioned in P.M. report and post-mortem is conducted
obviously subsequent to death.
(iii) As per the medical science and research, many factors can
influence the percentage or presence of ethyl or alcohol
in blood and it may vary due to different reasons and
blood alcohol level results may vary including the
percentage of Blood Alcohol Contents (BAC).
(iv) In certain circumstances, it may be lower of higher. Timing
of the test always affects the accuracy of result. The
blood alcohol test can detect alcohol in the system for
upto about 12 hours after the last drink.
(v) Herein, long time gap is there between the time of
incident and conducting of post-mortem. Even if we
consider other factors for ‘BAC’ like age, weight, type of
alcohol consumed, how quickly it was drunk and how
much ate before the drink and if a person is taking
medicines and further sensitivity / tolerance to alcohol is
also one of the criteria. All these issues are subject to
evidence.
(vi) Not only that, as per the forensic science, ethanol may be
found in the blood of a deceased person even if they did
not consume alcohol before death and many a times,Page 19 of 30
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during the post-mortem, ‘BAC’ level is affected multifold
due to (1) Putrefaction: after death, microorganisms
(bacteria and yeast) begin to break down body tissues and
ferment glucose, leading to “neo-formation” of alcohol
and (2) Forensic Differentiation: Pathologists use specific
markers like Ethyl Glucuronide (EtG) or Ethyl Sulfate (EtS)
– metabolites produced only during live metabolism to
distinguish between pre-death consumption and post-
death production.
(vii) Even, certain health factors can influence how much
ethanol is present or how long it stays in the blood unlike
in case of Diabetes / liver disease / genetic variations,
differences in enzymes like Alcohol Dehydrogenase (ADH)
and Aldehyde Dehydrogenase (ALDH) can significantly
affect how quickly an individual’s body processes ethanol.
(viii) As per the medical research, due to endogenous
production (internal synthesis) also, even without
drinking, the human body naturally contains minute
amounts of ethanol (typically 0.01 – 0.09 mg/dL) due to
internal metabolic activities like (a) microbial
fermentation, bacteria and fungi in the gastrointestinal
tract (such as Saccharomyces cerevisiae and Candida
species) ferment dietary carbohydrates into ethanol; (b)
auto-brewery syndrome (ABS), in rare cases of gut
dysbiosis, these microbes overgrow and produce
intoxicating levels of ethanol from consumed sugars and
straches; (c) metabolic by-products, ethanol can be a trace
by-product of normal cellular metabolism, such as the
oxidation of certain amino acids or the reduction of.
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[7.2] Hence, merely in the post-mortem report, 0.012 ml alcohol level
is mentioned in the report is not a ground to presume that the
deceased was unfit / in mental state to give the statement.
Hence, the argument that the statements wherein the deceased
had given the name of applicant – accused No.2 is required to be
discarded is also a matter of evidence more particularly in light
of endorsement put by the Doctor about the mental state and
condition and fitness of the deceased to record the statement.
Hence, such an argument made by the learned Senior Advocate
for the applicant is not acceptable coupled with medical science
and research.
[7.3] In view of aforesaid discussion and in view of the decision of the
Hon’ble Supreme Court in the case of Parasa Raja Manikyala
Rao And Anr vs State Of A.P. reported in AIR 2004 SC 132,
wherein it is observed that, …Each case, more particularly a
criminal case depends on its own facts and a close similarity
between one case and another is not enough to warrant like
treatment because a significant detail may alter the entire aspect.
In deciding such cases, one should avoid the temptation to decide
cases (as said by Cordozo) by matching the colour of one case
against the colour of another. To decide therefore on which side of
the line a case falls, the broad resemblance to another case is not
at all decisive, authorities relied on by the learned Senior
Advocate on the case of Sanjay (Supra); Kashi Vishwanath
(Supra); Yogesh @ Sachin Jagdish Joshi (Supra); Sanjay Kumar
Rai (Supra); Shiv Pratap Singh Rana (Supra) and Anokhilal
(Supra) would not avail any assistance to the applicant more
particularly in the peculiar facts of the case on hand since the
said authorities would avail assistance to accused after
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appreciation of evidence but not at the stage of framing of
charge.
[7.4] Another argument canvassed by learned Senior Advocate Mr.
Panchal is that the offence under Section 365 of the CrPC is not
made out and hence, question does not arise to kidnap the
person and after kidnapping bring home to his home. But, if we
peruse the investigation papers, it appears that accused was
residing with another lady at Bhachau and at the place of
offence, his wife was residing and after the incident, she did not
open the door of her house also. Not only that, from the
investigation papers and statement recorded by the
Investigating Officer of witnesses clearly reveals that accused
No.1 and wife of deceased were having illicit relationship and
accused Nos.1 and 2 being Sarpanch and Talati respectively,
having good relationship and present applicant – accused No.2
who caught hold of the deceased having the interest to get
transferred at the place of the deceased and even prior to
incident the witnesses have stated about the relationship of
both the accused and role played by the applicant prior to death
of the deceased. Considering the aforesaid fact, argument
canvassed by learned Counsel that there was no motive or no
offence is made out is not acceptable.
(iii) COMPLIANCE OF SECTION 226 OF THE CRPC:-
[8.0] Further, learned Senior Advocate for the applicant has
submitted that provision of section 226 of the CrPC is not
complied with by the learned Sessions Judge. If we consider the
provision of Chapter XVIII of the CrPC, Sections 226 to 228 are
very clear as the accused is brought before the Court afterPage 22 of 30
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committal, prosecution has to open the case disclosing the
charge brought against the accused and further, has to state as
to on what evidence he proposes to establish the guilt of the
accused. In other words, the opening of case under Section 226
of the CrPC which enables the accused to know about the
grounds and charges levelled against him by the prosecution
and after giving an opportunity of being heard to the accused, if
prosecution is able to show sufficient ground to put the accused
on trial, which includes the opportunity to file the discharge
application and accused prefers discharge application knowing
as to what are the grounds against him to proceed and to put
him on trial, the learned Sessions Judge has to decide the
discharge application.
[8.1] Further, at the earlier point of time, while discharge application
Exh.3 was filed, prior to that, accused had preferred an
application for providing the document and order was passed
and same order was assailed by way of Criminal Revision
Application No.388/2006 and same was also subsequently
disposed of as having become infructuous. Thus, it is clearly
reveals from the record that at earlier occasion while
application Exh.3 was decided, at that time, case was opened
and even next time also, case was opened and prosecution has
made submission to put the accused on trial based on material
or evidence collected during the investigation and conversely
the accused has preferred the discharge application stating that
no sufficient or ample material to put the accused on trial which
clearly reveals the compliance of section 226 of the CrPC.
[8.2] Herein, the applicant – accused No.2 was well-versed with the
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grounds and documents based on which he is going to be put on
trial and therefore, he filed second discharge application as he
was knowing about the charges and grounds to put him on trial
since inception and thereafter, he has filed the second discharge
application and after giving an opportunity of being heard and
after hearing at length both the parties, discharge application
came to be dismissed. Hence, perusing the record & proceeding,
it appears that ample opportunity is given to the applicant –
accused to defend himself and he has filed discharge application
twice and prosecution has opened the case and it appears that
there being sufficient ground to put the accused on trial, the
discharge application came to be rejected and charge was
framed on 01.01.2009. Hence, argument canvassed by learned
Senior Advocate for the applicant that provisions of section 226
of the CrPC is not complied with is not acceptable as it appears
that it is nothing but only an attempt to get quash the
impugned order and get the matter remitted back to the
learned Sessions Court.
[8.3] Further, learned Senior Advocate Mr. Panchal has submitted
that when discharge application came to be dismissed, on the
same day, charge is framed. It is needless to say that after giving
an opportunity to the applicant, discharge application came to
be dismissed and thereafter, the charge came to be framed. At
that time the accused never made any request stating that he
wants to challenge the rejection of discharge application but
going through the record i.e. application Exh.74, it appears that
learned advocate for the applicant had filed the application
subsequent to framing of charge stating that discharge
application Exh.50 came to be dismissed and Court has framedPage 24 of 30
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the charge against the accused but accused are entitled to
challenge the said order and requested to grant adjournment
for one month. Considering the fact that as said application was
filed after framing of charge, time was granted upto 13.01.2009
to prefer appropriate proceeding before this Court. Hence, it
appears that charge is framed and accused person is confined to
order and thereafter, they have made up their mind to challenge
the order of rejection of second discharge application.
[8.4] Perusing the record as well as the order impugned passed by
the learned Sessions Judge, it speaks volume about the conduct
of accused. Learned Sessions Judge has heard the accused at
length and taken note of 4th round initiated by the accused to
prolong the matter and accused succeeded in prolonging the
matter at the stage of framing of charge since long. Earlier
application Exh.3 for discharge under Section 3(2)(v) of the
Atrocity Act came to be dismissed which came to be challenged
before the coordinate Bench of this Court by way of filing
Criminal revision Application No.804/2006 which came to be
rejected though similar type of second application Exh.33 was
filed and Court has taken note that with ulterior motive and
only with a view to delay the trial. It is pertinent to note that at
earlier point of time framing of charge under Section 302 and
allied IPC offences was not challenged.
[8.5] So far as another argument made by the learned Senior
Advocate Mr. Panchal with regard to more than one dying
declaration is not dealt with by the learned Sessions Judge is
concerned, the learned Sessions Judge has stated in the
impugned judgment about the involvement of both the accusedPage 25 of 30
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as their names are narrated by the deceased in both the dying
declarations which clearly reveals involvement of both the
accused and ample evidence is collected against both the
accused and sufficient material was placed before the Court for
framing of charge and therefore, the discharge application came
to be dismissed. Hence, no error has been committed by the
learned Sessions Judge in dismissing the discharge application.
Not only that, learned Sessions Judge has also taken note of the
fact that if the applicant attempts to prolong the matter the
learned Sessions Judge will be compelled to cancel the bail
granted to the accused person which clearly reveals the
intention of the applicant – accused to prolong the trial. It is
sorry state of affairs that the alleged incident took place in the
year 2002 and till date not a single witness is examined and
though earlier discharge application was dismissed, another
discharge application was filed which was also dismissed and on
01.01.2009, order dismissing discharge application was assailed
by way of present revision application on 13.01.2009 and
Interim relief was granted by the coordinate Bench on
21.01.2009 and thereafter the matter was listed final hearing on
28.01.2009 though the matter was not heard finally and not
decided atleast during the period of more than 24 years from
the date of alleged incident and for more than 16 years, matter
remained pending at the stage of final hearing before this
Court.
[8.6] Be that as it may, considering the case on hand, it appears that
under the pretext of fair trial, accused is able to prolong the
matter since long and learned Sessions Judge has taken note of
the conduct of the accused and fair trial is not only for the
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accused. In this regard, reference is required to be made to the
decision of the Hon’ble Supreme Court in the case of State
(NCT of Delhi) vs. Shiv Kumar Yadav and Another reported in
(2016)2 SCC 402 wherein in paragraph No.11, it is has been held
that, “it is further well settled that fairness of trial has to be seen
not only from the point of view of the accused, but also from the
point of view of the victim and the society. In the name of fair trial,
the system cannot be held to ransom.” Herein, by adopting one or
another dilatory tactics, the applicant – accused has protracted
the trial and clogged the judicial system. It is worth to mention
that the applicant even after dismissal of discharge applications
before the learned Sessions Judge and once before this Court,
once again second discharge application was filed which came
to be dismissed and against the same, present revision
application is filed and the sole intention of the applicant –
accused is nothing but only to see to it that the matter is
remanded back so that the applicant can kill time as per his
whims and caprice and once again may enjoy another round of
litigation.
[9.0] In view of above, whether the defence raised by the present
applicant is bonafide or not, all these aspects are required to be
considered at the time of full-fledged trial as the learned Special
Judge is satisfied that prima facie case is made out and there is
sufficient material and evidence and ground for framing of
charge and the Court has not gone into the merits of the case
and considered on the basis of material on record that the
accused is likely to be convicted or not. Hence, the order passed
by the learned Special Judge does not call for any interference
as at the time of framing of the charge, Court has not to weigh
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evidence and come to conclusion as to whether or not there is a
possibility of recording conviction. Court has to only see as to
whether there is sufficient ground or material against the
accused based on which accused may be put to trial.
[9.1] In view of the law laid down by the Hon’ble Apex Court in the
case of P. Vijayan (Supra), Ashok Kashyap (Supra) and M.R.
Hiremath (Supra), and in the case of State of Tamil Nadu
Through Inspector of Police vs. N. Suresh Rajan & Ors.
reported in (2014)11 SCC 709 and in view of the fact that on the
basis of all the material on record, the learned Special Judge has
satisfactorily come to conclusion that the applicant – accused
might have committed an offence and sufficient material is
available to put the applicant – accused on trial.
[9.2] Ergo, the right of accused to prove the innocence arises only
during the trial and not at the stage of framing of charge.
Further, at the time of framing the charge, the Court must have
to evaluate the evidence as if determining the guilt or
innocence of accused. Even if accused argues that some
material is unreliable, incomplete or contrary, it is well settled
principle of law that such contentions are matters of trial and
not for discharge or quashing and even if for the sake of
argument, the accused is permitted to raise such defences, it is
nothing but would convert the discharge stage into a mini trial
to decide the sanctity or legality of dying declaration which is
illegal and also impermissible.
[9.3] It is needless to say that the revisional jurisdiction can be
exercised where there is a palpable error or non-compliance
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with the provision of law and where decision is completely
erroneous and where the judicial discretion is exercised
arbitrarily. Herein, if we examine the reasons assigned by the
learned Special Judge, it appears that learned Special Judge has
already appreciated the facts and finding of fact not to be upset
unless it is found perverse and finding of fact not to be
substituted keeping in mind the ratio of Hon’ble Supreme Court
in the case of Amit Kapoor vs. Ramesh Chander & Anr.
reported in (2012)9 SCC 460 as no perversity is found in the
reasons assigned by the learned Special Judge. The learned
Special Judge has assigned well-founded reasons while rejecting
the application under Section 227 of the CrPC and such findings
are based on evidence led before it and hence also, no
interference at the hands of this Court in exercise of revisional
jurisdiction is required.
[9.4] It would also be appropriate to refer to the decision of the
Hon’ble Supreme Court in the case of Malkeet Singh Gill vs.
State of Chhatisgarh reported in (2022)8 SCC 204 wherein the
Hon’ble Supreme Court held that section 397/401 CrPC vests
jurisdiction for the purpose of satisfying itself or himself as to
the correctness, legality or propriety of any finding and as to the
regularity of any proceedings of such inferior court. The object
of the provision is to set right a patent defect or an error of
jurisdiction of law. There has to be well-founded error which is
to be determined on the merits of individual case. It is also well
settled that while considering the same, the Revisional Court
does not dwell at length upon the facts and evidence of the
case to reverse those findings. It is a settled legal proposition
that if the Court below recorded the finding of fact, the
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question of re-appreciation of evidence by the revisional Court
does not arise unless it is found to be totally perverse.
CONCLUSION:-
[10.0] In wake of aforesaid conspectus, present criminal revision
application stands dismissed. Resultantly, the impugned order
dated 01.01.2009 passed below Exh.50 by the learned
Additional Sessions Judge and Presiding Officer, 4 th Fast Track
Court, Gandhidham – Kachchh in Sessions Case No.38 of 2002 is
hereby confirmed.
As the offence is registered way back in the year 2002,
learned Additional Sessions Judge, Gandhidham-Kachchh is
directed to expedite the trial by conducting trial on day to day
basis. Rule is hereby discharged. Records and proceedings be
sent back forthwith to the learned trial Court. Interim relief
granted earlier stands vacated forthwith. It is needless to say
that the observations made herein are tentative in nature.
Sd/-
(HASMUKH D. SUTHAR, J.)
AjayPage 30 of 30
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