Gujarat High Court
State Of Gujarat vs Harijivan Chaturbhai on 16 July, 2025
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 739 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI
==========================================================
Approved for Reporting Yes No
==========================================================
STATE OF GUJARAT
Versus
HARIJIVAN CHATURBHAI & ORS.
==========================================================
Appearance:
MS JIRGA JHAVERI, ADDL PUBLIC PROSECUTOR for the Appellant(s) No.
1
ADVOCATE NOTICE SERVED for the Opponent(s)/Respondent(s) No. 5
BHOOMI M THAKORE(6237) for the Opponent(s)/Respondent(s) No. 1,3,4,6
MR. HARSH K THAKAR(7172) for the Opponent(s)/Respondent(s) No.
1,3,4,6
UNSERVED EXPIRED (N) for the Opponent(s)/Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI
DESAI
Date : 16/07/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
1. The appellant State, being aggrieved by the Page 1 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025 NEUTRAL CITATION R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025 undefined judgement and order passed by the Sessions Judge, Bhavnagar in Sessions Case No. 231 of 1994 on 29.04.1995, whereby, all the accused were acquitted of the charge under Sections 143, 147 and 302 read with Section 149 of the Indian Penal Code, has preferred this appeal.
2. The prosecution has highlighted the incorrect facts narrated in the impugned judgement.
3. Heard Ms. Jirga Jhaveri, learned APP for the appellant State who has taken us through the entire gamut of evidence which was rendered before the learned trial court wherein, the prosecution to bring home the guilt of the accused had examined as many as 13 witnesses and had submitted 22 documents. Upon completion of the oral evidence, the learned Sessions Judge had recorded the statements of the accused under Section 313 of the Cr.P.C. and after hearing the learned advocates for the either sides, was pleased to pass the Page 2 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025 NEUTRAL CITATION R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025 undefined order and judgement of acquittal as regards all the six accused.
3.1 Ms. Jhaveri, the learned APP submitted that the impugned judgement is required to be interfered with, inasmuch as, the competent court had erred in not considering the dying declaration below Exh. 29 and the complaint below Exh. 42, in their true perspective. She submitted that, the competent court erred in not considering the deposition of P.W. 3 - Meenaben Oghadbhai, Exh. 30 who was the minor daughter of the deceased and an eye witness to the incident. She also submitted that the prosecution had also failed to consider the deposition of P.W. 4 - Oghadbhai Shardulbhai, Exh. 31, the husband of the deceased in its true perspective. She has drawn the attention of this court to the deposition of P.W. 6 - Gomiben, Exh. 36 who was the panch witness of the panchnama of body condition of deceased and submitted that, though P.W. 6 was declared hostile, it is not in dispute that the deceased had Page 3 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025 NEUTRAL CITATION R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025 undefined sustained burn injuries.
3.2 Ms. Jhaveri has also placed reliance on the FSL report and submitted that, the muddamal clothes of the deceased which were sent to the FSL, record the presence of residual petroleum hydrocarbons (kerosene). She has also drawn our attention to the inquest panchnama and the arrest panchnama and submitted that the same are also not considered in their true perspective. She submitted that, therefore the impugned judgement is required to be interfered with.
4. Ms. Bhoomi M. Thakore, the learned advocate appearing for the respondents - accused submitted that, no interference is called for in the impugned judgement rendered by the competent court. It is submitted that the statement of minor witness P.W. 3 - Meenaben Oghadbhai below Exh. 30 was taken after two days of the incident and the same is tutored. She submitted that, statement of P.W - 4 - Oghadbhai Shardulbhai, Exh. 31, Page 4 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025 NEUTRAL CITATION R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025 undefined husband of the deceased who had taken the deceased to the hospital, was not recorded by the police authorities immediately and that though he had accompanied the deceased to the hospital, no FIR was registered by him. She submitted that, though one Darbar Bhikhubhai had accompanied the deceased and her husband to the hospital, he was not examined by the prosecution. It is further submitted that, P.W. 6 - Gomiben Parshottambhai, Exh. 36 had not supported the case of the prosecution. She submitted that, it was not in dispute that the deceased had sustained 96 - 98% burns and therefore, she was under sedation because of injections given to her, which would make her dying declaration and the complaint questionable. She also submitted that, the post mortem report did not clearly mention if the death of the deceased was suicidal or homicidal. 4.1 Ms. Thakore further submitted that, recovery of the kerosene bottles from the place of incident did not happen, which were allegedly used for the offence, and Page 5 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025 NEUTRAL CITATION R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025 undefined that, the FSL report was silent on this aspect. She submitted that, there is no panchnama as regards the clothes of the accused and that the same were not sent to the FSL. It is also submitted that, there were discrepancies in the dying declaration below Exh. 29 and the complaint below Exh. 42. She submitted that, therefore considering the aforesaid, the appeal deserved to be dismissed, more so, the prosecution having failed to prove the case against the accused beyond reasonable doubt.
5. Having heard learned advocates appearing for the parties and having gone through the impugned judgment coupled with the oral as well as documentary evidence placed on record, we find that it is the prosecution case that, the deceased Shantuben lived in the railway quarters, situated in Gang No. 24 on the Railway Line of Songadh - Sanosara, Western Railway. The accused also lived in those quarters. On the date of incident i.e. on 03.08.1994 at about 6 to 7 pm, while the deceased and Page 6 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025 NEUTRAL CITATION R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025 undefined her children were at her house and her husband Oghadbhai had gone to a flourmill in Vaav village, the accused herein reached the house of deceased and constituted unlawful assembly. The accused nos. 1 to 3 forcibly dragged the deceased out of her house. Accused nos. 4 to 6 were in possession of bottles filled with kerosene, with an intention to burn her. Accused no. 4 Premilaben lit a matchstick and set the deceased ablaze which resulted into her death. The accused therefore were charged with commission of offence punishable under Sections 302 read with Section 149 IPC. They were also charged with offence punishable under Sections 143 and 147 IPC. As per the case of the prosecution, the reason behind such assault was a complaint registered by accused no. 6 Meenaben Dashrathbhai before the Dhola Railway Police Station on 11.05.1994, against the deceased and her husband. Thereafter, chapter cases were also filed between the parties. It was also the case of the prosecution that, there were quarrels between the deceased and accused Page 7 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025 NEUTRAL CITATION R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025 undefined nos. 3 & 6 with regard to children.
6. At the outset, before discussing the evidence relied upon in the present case and analysing the judgement rendered by the competent court, it would be appropriate to refer to the observations of the Apex Court regarding the scope of interference in acquittal appeals in the case of Chandrappa & Ors. Vs. State of Karnataka reported in 2007 (4) SCC 415, wherein, the Apex Court has observed as under:
"Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313, this Court stated:
"While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court".Page 8 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025
NEUTRAL CITATION R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025 undefined From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;
(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
Page 9 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025
NEUTRAL CITATION R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025 undefined 6.1 In the case of Sanjeev v. State of Himachal Pradesh reported in 2022 (6) SCC 294, the Hon'ble Apex Court has held as under:
"7. It is well settled that:-
7.1 While dealing with an appeal against acquittal, the reasons which had weighed with the Trial Court in acquitting the accused must be dealt with, in case the appellate Court is of the view that the acquittal rendered by the Trial Court deserves to be upturned (See Vijay Mohan Singh v. State of Karnataka3, Anwar Ali and another v. State of Himachal Pradesh).
7.2 With an order of acquittal by the Trial Court, the normal presumption of innocence in a criminal matter gets reinforced (See Atley v.
State of Uttar Pradesh).
7.3 If two views are possible from the evidence on record, the appellate Court must be extremely slow in interfering with the appeal against acquittal (See Sambasivan and others v. State of Kerala)."
6.2 Similarly, in the case of Bhupatbhai Bachubhai Chavda and another reported in [2024] 4 S.C.R. 322, the Hon'ble Apex Court has held as under:
"6. It is true that while deciding an appeal Page 10 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025 NEUTRAL CITATION R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025 undefined against acquittal, the Appellate Court has to reappreciate the evidence. After re- appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on evidence on record. Perusal of the impugned judgment of the High Court shows that this question has not been adverted to. Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well-settled principle that an order of acquittal further strengthens the presumption of innocence of the 326 [2024] 4 S.C.R. Digital Supreme Court Reports accused. After having perused the judgment, we find that the High Court has not addressed itself on the main question.
7. The second error the High Court committed is found in paragraph 23 of the impugned judgment. The High Court has gone to the extent of recording a finding that the appellants have failed to adduce evidence in their support, failed to examine the defence witness and failed to establish falsity of the prosecution's version. This concept of the burden of proof is entirely wrong. Unless, under the relevant penal statute, there is a negative burden put on the accused or there is a reverse onus clause, the Page 11 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025 NEUTRAL CITATION R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025 undefined accused is not required to discharge any burden. In a case where there is a statutory presumption, after the prosecution discharges initial burden, the burden of rebuttal may shift on the accused. In the absence of the statutory provisions as above, in this case, the burden was on the prosecution to prove the guilt of the accused beyond a reasonable doubt. Therefore, the High Court's finding on the burden of proof is completely erroneous. It is contrary to the law of the land.
...
11. Therefore, the appeal must succeed. We set aside the judgment and order dated 14th December 2018 of the High Court and set aside the conviction of the appellants. The judgment and order dated 5th July 1997 of the Trial Court is restored. The appeal is, accordingly, allowed. The bail bonds of the appellant no.2 are cancelled. The appellant no.1 shall be forthwith set at liberty unless he is required to be detained in connection with any other case."
6.3 Thus, in case the appellate court agrees with the reasons and the opinion given by the competent court below, then the discussion of evidence at length is not necessary. In light of the above settled principle of law laid down for acquittal appeals, we have briefly reppreciated the evidence led by the prosecution in the present Sessions Case.
Page 12 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025
NEUTRAL CITATION R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025 undefined
7. P.W. 3 - Meenaben Oghadbhai is the daughter of the deceased who deposed below Exh. 30. She was aged about 11 years at the time of the incident and was present at the house where the alleged incident occurred. As per the prosecution, she is the eye witness to the incident. In her deposition, she deposed that on the date of incident, at around supper time, while she and her mother were in their house and her father had gone to Vaav village, the accused nos. 1 to 3 entered their house and forcibly dragged them out of the house. At that time, accused nos. 4 to 6 brought kerosene, poured it on her mother and set her ablaze. She deposed that, one of the ladies out of these three accused, had lit a matchstick and set her mother on fire. It was further deposed by her that, her mother started shouting for help and she herself also shouted for help. It was deposed by her that, on hearing their shouts, Bhanuben (P.W.-7), their neighbour rushed to their house and tried to extinguish the fire on the deceased.
Page 13 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025
NEUTRAL CITATION R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025 undefined It is pertinent to note that, the statement of P.W. 3 was recorded after two days of the incident. 7.1 P.W. 4 - Oghadbhai Shardulbhai, the husband of the deceased had taken the deceased to the hospital. He deposed vide Exh. 31 that, he was not present when the incident has occurred but, when he returned from Vaav village, he saw his wife lying on a cot outside their house. He stated that, he took her to the hospital for treatment. He deposed that, he was present in the hospital, outside the ward where his wife was admitted, but he did not see any police or any officer having visited his wife in the hospital ward. His statement was not recorded by the police. The complaint was not lodged by him but, by the deceased herself.
8. In the aforesaid set of facts, there are two dying declarations given by the deceased Shantuben. The first one being recorded by the Medical Officer below Exh. 29, Page 14 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025 NEUTRAL CITATION R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025 undefined and the other in the form of complaint below Exh. 42 given to the police authorities.
8.1 Upon perusal of the dying declaration below Exh. 29, it is borne out that upon a yadi sent on 03.08.1994 to the Executive Magistrate by Police Constable Shri K.V. Pandya, Hospital Duty, A division police station, Bhavnagar, the Executive Magistrate recorded the dying declaration of the deceased Shantuben on 04.08.1994. As per the said dying declaration, the deceased had mentioned that her neighbours - the accused herein in collusion poured kerosene on her, lit a matchstick and set her on fire. She stated that her daughter Meena had extinguished the fire with a blanket and thereafter, her husband had taken her to hospital. The deceased had affixed her right hand thumb impression on the dying declaration.
8.2 Appropos the said dying declaration, it is pertinent to note that, the Medical Officer had endorsed that the patient was conscious on 04.08.1994 at 12.55 am. Page 15 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025
NEUTRAL CITATION R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025 undefined However, there is no certificate of the Medical Officer either during the recording of the dying declaration or thereafter, about the fitness of the deceased. It is not in dispute that, the names of accused nos. 1 to 6 were mentioned in the dying declaration.
9. P.W. 2 - Shashikantbhai Pathak is the Executive Magistrate who had recorded the dying declaration of the deceased below Exh. 29. He had stated in his deposition below Exh. 27 that, when he had gone to record the dying declaration of the deceased pursuant to the yadi so received by him, the Medical Officer had accompanied him, who had certified that the patient was conscious and fit to give her statement. He deposed that he had recorded the dying declaration between 12.55 and 01.05 am, however, upon completion of the same, either endorsement from the medical officer or his certificate was not sought by him. He had admitted that, the blood pressure and pulse rate of Shantuben were not mentioned in the dying declaration.
Page 16 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025
NEUTRAL CITATION R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025 undefined
10. We have perused the complaint given by the deceased below Exh. 42. The said complaint is without any certificate given by the Medical Officer with respect to the consciousness of the deceased and whether she was fit and in a position to give the complaint, which was later on converted into dying declaration. Though the thumb impression of the deceased was affixed, the same was not counter signed by the Police Inspector, A Division Police Station who had taken the complaint. The complaint at Exh. 42 discloses the name of accused no. 4 Premilaben having lit a matchstick, however, the dying declaration below Exh. 29 states that, the deceased had named all the six accused having set her ablaze by lighting matchstick.
10.1 P.W. 10 - Tribhovandas Patel is the Police Inspector who had taken the complaint of the deceased. This witness had deposed below Ex. 41 that, the complaint came to be recorded on 03.08.1994 at 11.45 pm and which was completed on 04.08.1994 at around 00.15 am, Page 17 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025 NEUTRAL CITATION R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025 undefined which was written by the constable on duty. He stated that, after taking down the complaint, since the incident had taken place within the jurisdiction of Songadh police station, he had instructed the PSO of his police station to send a yadi of the incident to Songadh Police Station. He deposed that, he searched for the Medical Officer on duty but did not find him. He thereafter ascertained the fitness of the deceased from the nurse on duty and went ahead to note the complaint.
10.2 P.W. 11 - Kiritsinh Gohil is the head constable who was on duty at the hospital. He deposed below Exh. 43 that, after taking down the complaint, he had sent the yadi of the complaint with the complaint below Exh.42 to Songadh police station since, the incident occurred was not within the jurisdiction of his police station. However, there is no receipt on record from Songadh police station. 10.3 P.W. 12 - Dr. Harunbhai Parmar is the Medical Officer who was on duty at Sir T. Hospital where the deceased was brought for treatment. He deposed below Page 18 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025 NEUTRAL CITATION R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025 undefined Exh. 48 that, the deceased had sustained 90% burns. He stated that, he did not send any yadi to the Executive Magistrate because it was sent by the on-duty head constable at the hospital.
11. At this stage, it shall also be germane to peruse the deposition of P.W. 7, the neighbour Bhanuben Vashrambhai, as P.W. 7 who had deposed below Exh. 37. She is an independent witness who in her deposition stated that, Meenaben, the minor daughter of the deceased was not present at the scene of incident when the deceased was burnt. In her cross-examination she had stated that, accused nos. 2 to 6 had helped the deceased and others to board the intercity train and had also accompanied them.
12. After having analysed the oral evidence put forth by the prosecution, particularly from the deposition of the eye witness minor Meenaben, the role of the accused is not clear. She stated that, she shouted seeing her mother Page 19 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025 NEUTRAL CITATION R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025 undefined being dragged out of the house by the accused and being set on fire, and hearing her shouts, their neighbour Bhanuben rushed to the house. The same is however, contradicted by their neighbour Bhanuben P.W. 7 who stated that, when she reached the house of deceased, P.W. 3 Meenaben was not present there. Further, the statement of P.W. 3 Meenaben was taken by the police authorities after two days of the incident. In her deposition, P.W. 3 Meenaben stated that, P.W 7 Bhanuben had extinguished the fire on the body of the deceased, whereas, the deceased in her dying declaration stated that, her daughter P.W. 3 Meenaben had doused the fire. From the overall appreciation of the evidence of the aforesaid witnesses, it emerges that the deposition of P.W. 3 Meenaben can be said to be tutored.
13. So far as the documentary evidence is concerned, we have perused the arrest panchnama below Exh. 16. The accused nos. 4, 5 & 6, had a bottle of kerosene each, at the time of the panchnama. However, when the same Page 20 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025 NEUTRAL CITATION R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025 undefined is seen in juxtaposition with the FSL report at Ex. 23, it is borne out that only the clothes of deceased were sent to FSL, which records the presence of kerosene. The muddamal bottles containing kerosene allegedly belonging to accused nos. 4 to 6 were not sent to FSL. The clothes of the accused were also not sent to the FSL for analysis.
13.1 P.W. 5 - Narayan Sondhi, panch witness in his deposition below Exh. 33 recognised the muddamal nos. 1 & 2 which were the bottles found on the verandah of the house (otla) as per the panchnama. It however did not come on record as to what were the contents of the bottles.
13.2 P.W. 6 - Gomiben Parshottambhai is also a panch witness having deposed below Exh. 36. She was one of the witnesses who had visited the hospital along with two other witnesses. She deposed that deceased Shantuben had sustained burns all over her body. In the cross- examination, this witness stated that the deceased was Page 21 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025 NEUTRAL CITATION R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025 undefined sleeping when the panchas went to the hospital and that, neither did they ask the deceased any questions nor did the deceased answer anything on her own.
14. Considering the depositions of P.W. 6 Gomiben and the Medical Officer P.W. 12 Dr. Harunbhai Parmar, it is not in dispute that the deceased had sustained about 90- 96% burns. In such condition, it is really a matter of concern, as to whether the deceased was in a position to speak as she would have been under the influence of strong sedative injections. It is also pertinent to note that, one Bhikhubhai Darbar, the person who had accompanied the husband of the deceased to the hospital, was not examined by the prosecution.
15. It emerges that, the prosecution had failed to stand on its own legs wherein the prosecution has thought it fit not to send to the FSL either the clothes of the accused or the muddamal bottles of kerosene recovered from the accused nos. 4 to 6, at the time when the arrest panchnama was drawn. The only clothes sent to the FSL Page 22 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025 NEUTRAL CITATION R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025 undefined were that of the deceased.
16. The Medical Officer in his deposition stated that no yadi was sent to the Executive Magistrate and also the complaint below Ex. 42 which is recorded by the police constable, there is no certificate given by the Medical Officer regarding the fitness of the deceased. Though there was signature of the Medical Officer prior to recording of the dying declaration, there was no certificate issued after the recording of dying declaration was over. The same is also admitted by P.W. 8 - Dr. Hareshbhai Gohil vide Exh. 38 in his deposition wherein in the cross-examination he stated that he did not certify the fitness of the deceased after the recording of the dying declaration was over.
17. As discussed before, it is a settled legal position that in acquittal appeals, the appellate court is not required to re-write the judgement or to give fresh reasonings, when the reasons assigned by the Court below are found to be Page 23 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025 NEUTRAL CITATION R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025 undefined just and proper. Such principle is laid down by the Hon'ble Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under:
"... This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."
17.1 Thus, in case the appellate court agrees with the reasons and the opinion given by the competent court below, then the discussion of evidence at length is not necessary.
18. The court below has in depth analysed the oral as well as documentary evidence on record and came to the conclusion that, the charges against the accused were not proved beyond reasonable doubt by the prosecution. Page 24 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025
NEUTRAL CITATION R/CR.A/739/1995 JUDGMENT DATED: 16/07/2025 undefined Upon overall appreciation of the evidence adduced by the prosecution and defence as well as the impugned judgement, harmoniously with the findings recorded by us, we do not deem it fit to interfere with the reasonings assigned by the competent court. The impugned judgment and order is hereby confirmed.
19. Accordingly, the present appeal is dismissed. R & P, if any called for, to be sent back to the concerned Trial Court forthwith.
(VAIBHAVI D. NANAVATI,J) (UTKARSH THAKORBHAI DESAI, J) DIVYA Page 25 of 25 Uploaded by DIVYA PILLAI(HC00199) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:45:43 IST 2025