DHANJI BHIMJI AHIRversusSTATE OF GUJARAT

  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
==========================================================
         Approved for Reporting              Yes No
                                               √
==========================================================
                        DHANJI BHIMJI AHIR
                               Versus
                        STATE OF GUJARAT
==========================================================
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
==========================================================
  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 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 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 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
  Original copy of this order has been signed by the Hon'ble Judge.
  Digitally signed by: AJAY CHANDRAN MENON(HC00939), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 10/04/2026 15:04:59




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