Udaipur District Court Quashes ACJM Order Upholding Coma Patient’s Will Without FSL Verification [READ ORDER]

The Additional District and Sessions Judge, Court No. 2, Udaipur quashed the order passed by the Additional Chief Judicial Magistrate (ACJM) upholding coma patient’s will without even ordering FSL verification of the disputed document.

The bench of Additional District Judge Damyanti Purohit (ADJ-2) has observed that the ACJM’s order has not made any mention of the fact that, in the habeas corpus petition, the factual report concerning the testator, the late Kejar Hussain, being in a coma was falsely submitted. Nor was any certificate from a medical practitioner sought in this regard. The order also does not mention why it was not considered necessary to conduct an FSL (Forensic Science Laboratory) examination of the disputed will.

The bench noted that The Final Report (F.R.) has been accepted solely on the basis of the statements recorded under Section 161 of the CrPC from acquaintances/relatives of the deceased, despite the fact that the will bears a thumb impression instead of the deceased’s signature. Thus, the impugned order, in view of the monitoring petition and the grounds stated therein, does not appear to be reasoned or logical. Therefore, the revision petition by the daughter of the deceased is found to be admissible.

Dispute Centers on Alleged Coercion and Questionable Testamentary Capacity

According to the petition, the petitioner’s father, who was suffering from brain tumor and was in a coma for nine months, was allegedly prevented from receiving life-saving treatment and was discharged from the hospital under suspicious circumstances. It was further alleged that access to him was denied to his wife and daughters, and he was unlawfully confined by the accused (mother and sisters of the deceased).

The petitioner challenged the will dated September 15, 2022, claiming that it was fraudulently executed in favor of the mother and sisters of the deceased, despite the petitioner’s father (testator) being in no condition to make rational decisions due to his medical state. The will was allegedly marked not with a signature but a thumb impression, raising concerns of forgery and coercion.

Deceased Testator’s Daughter’s Arguments

The petitioner (testator’s daughter) contended that the subordinate court (ACJM-2), without providing any reasonable justification, rejected the protest petition filed by the petitioner and, based on the final report submitted by the police.

The petitioner (testator’s daughter) contended that the mother, Amina Paliwala and the sisters, Malika Nathduwarawala and Sanjida Nathduwarawala of the deceased testator driven by greed for money and property, forcibly discontinued the treatment of the petitioner’s father for brain tumor, and colluding with the doctor at Geetanjali Hospital, got him discharged.

It was further contended that the accused did not allow the petitioner, her mother, and sisters to meet her father, and accused Malika Nathaduwarawala illegally kept him under confinement at her home, against which the petitioner filed a habeas corpus petition before the Rajasthan High Court.

In habeas corpus petition, as per the factual report dated 09.04.2023 submitted by the Ambamata police station, the petitioner’s father had been in a coma for the past nine months and was suffering from cancer, and was incapable of moving, thinking, or understanding.

In such a state of coma, it is impossible for the petitioner’s father to have executed the will dated 15.09.2022 in favor of his wife and two daughters. Moreover, the will does not bear his signature. This clearly indicates that the mother and sisters of the late Kejar Hussain, in conspiracy with the witnesses of the will, fraudulently created a forged will.

During the investigation, the police filed a Final Report (FR) accepting the will as genuine without obtaining the FSL (Forensic Science Laboratory) report of the said will. Therefore, the protest petition dated 05.04.2024 filed by the petitioner against the FR should be accepted by rejecting the FR.

Argument On Behalf of Accused

The counsel for the Accused Mr. Nishant Bagri without diving into merits of the case contended that a civil suit seeking cancellation of the will dated 15.09.2022 filed by the petitioner against them is already pending before the court, which clearly indicates that the dispute between the parties is of a civil nature. Therefore, the revision petition should be dismissed.

Police and ACJM’s Findings Contradict Claims

The court, after examining the police investigation and statements recorded under Section 161 CrPC, found no medical evidence substantiating the father's coma or incapacity. The forensic report and witness testimonies suggested that the will was executed according to the father's wishes and affirmed by a registered thumb impression, deemed valid under law.

Additional District and Sessions Judge’s Observation And Direction

In the impugned order passed by the subordinate court, the reason cited for accepting the final report (FR) is the statements recorded under Section 161 of the CrPC during the course of investigation. In the statements under Section 161 of the CrPC available on record, the deceased’s maternal uncle, Daud Ali, has stated that he himself, along with the deceased and Kamruddin, had gone to the court on 15.09.2022 as per the deceased's wish, and a will was typed as per his instructions. Notary Kuldeep Chaubisa has stated under Section 161 CrPC that the deceased and Kamruddin Kasawala had brought a typed report, which he verified and entered in his register. Similarly, stamp vendor Prakash Paliwal stated that the deceased Kejar had purchased stamp paper for the will on 15.09.2022. The witness to the will, Kamruddin, also stated that he accompanied the deceased to get the will typed and notarized as per the deceased's wish. All the witnesses further stated that, due to the deceased’s illness on the date of the will, he affixed his thumb impression instead of signing it.

In its order, the subordinate court has made no mention of whether a false report was submitted in the habeas corpus petition regarding the deceased Kejar Hussain being in a coma. Nor was any medical certificate in this regard summoned. The order also does not state why forensic examination of the disputed will was not deemed necessary. The FR was accepted solely on the basis of statements of the deceased’s acquaintances/relatives recorded under Section 161 of the CrPC, despite the fact that the will bears a thumb impression rather than the deceased’s signature. Therefore, the order, when considered in the light of the grounds stated in the revision petition, does not appear to be reasoned or logical. Hence, the revision petition is found to be admissible.

Accordingly, the revision petition submitted by the petitioner is accepted, and the impugned order dated 23.05.2024 passed by the Additional Chief Judicial Magistrate Court No. 2, Udaipur in FR No. 244/2023 (FIR No. 730/2023) Police Station Ambamata, CIS No. 332/2024, is set aside.

The court directed the subordinate court to reconsider and dispose of the protest petition submitted by the petitioner in light of the above-stated points.

The court directed that a copy of the order shall be sent to the trial court immediately. The file shall be listed and filed in the office upon completion.

Case Details

Case Title: Mariya Paliwala Versus Amina Bai & Ors.

Case No.: Cr. Revision No. 173/2024

Date: 23/04/2025

Counsel For Petitioner: Amit Sharma, Anirudh Jain, Tanuj Sanadhya, Mariya Paliwala

Counsel For Respondent: Nishant Bagri

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