R/CR.RA/6/2009 CAV JUDGMENT DATED: 10/04/2026

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, 4

th

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 applicant

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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 10

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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 Rana

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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 Court

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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 protract

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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,

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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 prima

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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 emerging

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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 said

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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 give

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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,

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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 after

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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 framed

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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 4

th

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 accused

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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.)

Ajay

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