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2017 DIGILAW 405 (GUJ)

State of Gujarat v. Mayuddin Mohmad Roshan Luhar

2017-02-16

A.J.SHASTRI, S.R.BRAHMBHATT

body2017
JUDGMENT : A.J. Shastri, J. 1. Both these Criminal Appeal and Criminal Revision Application arise out of judgment and order dated 25.2.2006 passed in Sessions Case No. 290 of 1995 by the learned Presiding Officer, 11th Fast Track Judge, Nadiad, whereby original accused were acquitted for the offences punishable under sections 498-A, 304-B, 201 and 114 of the Indian Penal Code. Criminal Appeal No. 1396 of 2006 is filed by the State while Criminal Revision Application No. 448 of 2006 is filed by the original complainant. 2. As both these appeals and revision arise out of the same judgment and order, they were heard together and are being decided by this common oral judgment and order. 3. Short facts of the case are that the complainant had eight children out of which, eldest daughter is Farzana whose marriage was solemnized with accused No. 1-Mayuddin Mohmad Roshan Luhar as per their customs two years prior to the incident in question. Initial marriage life was happy but thereafter, her mother-in-law (accused No. 2) started giving her physical and mental torture about dowry. However, when an information was received by the complainant from the place of in-laws that victim had tried to set herself on fire by pouring kerosene over her body, the complainant along with Babubhai Luhar went to Sevalia and on inquiring from her daughter, she had told that her husband tried to put her on fire by pouring kerosene over herself with the help of her mother-in-law. Thereafter, victim was brought back to his house where she stayed for two months. During this period, husband of the victim came and quarreled with the family members of the complainant. With the intervention of society people, victim was sent back to the house of her in-laws for living separately with her husband. Thereafter, she was staying at the house of Lilabhai Luhar where her mother-in-law and husband continued to give her mental and physical torture. However, when a telephonic message was received from Balasinor that Farzana was admitted to the hospital, the complainant went to Godhra from where, he came to know that his daughter was caught fire and on reaching Sevalia, he knew that his daughter had died. However, when a telephonic message was received from Balasinor that Farzana was admitted to the hospital, the complainant went to Godhra from where, he came to know that his daughter was caught fire and on reaching Sevalia, he knew that his daughter had died. A complaint was therefore registered before Thasara Police Station being C.R. No. I-84 of 1994 and investigation was carried out and as there appeared prima facie case against the accused, charge sheet was filed against the accused. 3.1 As the offence was triable exclusively by Court of Sessions, the learned Magistrate in exercise of power under section 209 of Cr.P.C. committed the case and it was placed before 1st Fast Track Court at Nadiad wherein it was registered as Sessions Case No. 290 of 1995. Thereafter charge was framed against the accused which was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. Hence, the prosecution was asked to prove the guilt against the accused. 3.2 The prosecution with a view to prove and establish the case against the respondents accused has led the oral as well as the documentary evidence. Initially, the prosecution has examined the oral evidence in the following manner: TABLE The prosecution has also led the documentary evidences in the following manner: TABLE 3.3 Having adduced the evidence, a closing pursis has been given by the prosecution and then accused persons have been given an opportunity to tender further statements under Sec. 313 of Code of Criminal Procedure and since the respondents accused denied the offence being committed and reiterated that the deceased died on account of sustaining accidental burns while preparing tea and a false case is made out against them. Thereafter issues came to be framed and ultimately, after analysing the evidence on record and after conducting the entire trial, learned Presiding Officer, Fast Track Court No. 11, Nadiad, in exercise of power under section 235(1) of Cr.P.C. has acquitted the respondents accused. It is this judgment and order of acquittal against the respondents accused which is giving rise to present appeal by the State as well as revision by the complainant. 4. Learned APP, Mr. L.R. Poojari, appearing for the State has vehemently contended that the prosecution by leading detailed evidence has established the case against the respondents accused beyond reasonable doubt. It is this judgment and order of acquittal against the respondents accused which is giving rise to present appeal by the State as well as revision by the complainant. 4. Learned APP, Mr. L.R. Poojari, appearing for the State has vehemently contended that the prosecution by leading detailed evidence has established the case against the respondents accused beyond reasonable doubt. However, on appreciation of evidence led by the prosecution, a serious error has been committed by the learned trial Judge and rather the entire evidence has been misread and has not been considered in the context of charge which has been framed against the respondents accused and therefore, this being a serious error of jurisdiction, the order in question is required to be quashed. 5. Mr. Pujari has taken this Court through the evidence of Haji Mahmmadhusen Nasirbhai, P.W. No. 3 at Exh. 12 wherein he has deposed that victim was his daughter and was married with accused No. 1 at Savalia two years prior to the incident. He has also deposed that initially, the marriage life was happy but thereafter, her mother-in-law, accused No. 2, started to give her physical and mental torture by saying that she did not bring anything in dowry, her father was poor and thereby used to beat her up. He has also deposed that at one point of time, in-laws of the victim informed him that she had tried to put her on fire by pouring kerosene over herself and therefore, he and Babubhai Luhar went to Sevalia and when inquired, it was informed by his daughter that her husband tried to put her to fire by pouring kerosene with the help of her mother-in-law. Thereafter, the victim was brought to her parental house at Godhra where she stayed for two months. He has further deposed that during this period, husband of the victim came and quarrelled with his family members. However, with the intervention of society people, Farzana was sent back to her in-law's house with a condition to live separately with her husband and she was staying at the house of Lilabhai Luhar where her mother-in-law and husband continued to give her mental and physical torture. At one point of time, a telephonic message came from Balasinor that Farzana was admitted to hospital and to come at once. At one point of time, a telephonic message came from Balasinor that Farzana was admitted to hospital and to come at once. He, therefore, went to Godhra and knew that his daughter was caught fire and on reaching Sevalia, he knew that his daughter had died and therefore, he lodged the complaint before the Thasara Police Station. Though this witness was cross-examined at length, nothing adverse came out of the same, however, the learned trial Judge has not properly appreciated the evidence of this witness. Mr. Poojari has further taken us through the evidence of P.W. No. 7, Yusufbhai Bhurabhai Khokhar examined at Exh. 30 from which, it is clear that the deceased committed suicide due to harassment meted out at the hands of the respondents accused. Mr. Poojari has also drawn the attention that the learned trial Judge has not properly appreciated the evidence of P.W. No. 8 Kiranbhai Somabhai Patel examined at Exh. 56 wherein he has deposed that on 13.5.1994 when he was discharging his duty as Medical Officer at K & G Hospital, Balasinor, at about 3.45 p.m., Farzanabanu was brought by two ladies for medical treatment without police yadi. This medical officer has deposed that there were 98% burn injuries on her body and her condition was critical. This witness had informed the relatives of the victim and police at about 4 p.m. As the condition of the victim was serious, she was referred to burns ward for further treatment and the victim died on 14/5/1994 due to burn injuries. He has deposed that the Executive Magistrate has recorded her statement on 13/5/1994. Nothing adverse came out his cross-examination. Mr. Pujari has taken this Court through the evidence of P.W. No. 6, Dr. Tushar Pravinsinh Shah at Exh. 25 wherein he has deposed that on 14.5.1994, when he along with Dr. Kiran Patel was discharging his duty as medical officer at K.M.G. Hospital, Balasinor, dead body of the victim Farzana was received with police yadi for doing post mortem and she was having 98% burns injuries. He has further deposed that post mortem was done by Dr. Kiran Patel and he and Dr. Kiran Patel signed the post mortem report which is at Exh. 26. He has accepted the suggestion put to him that even if a patient received 98% burn injuries, sometimes the patient can speak. He has further deposed that post mortem was done by Dr. Kiran Patel and he and Dr. Kiran Patel signed the post mortem report which is at Exh. 26. He has accepted the suggestion put to him that even if a patient received 98% burn injuries, sometimes the patient can speak. He has clearly deposed that he has issued the certificate at Exh. 26 wherein it was stated that the injuries sustained by the deceased were sufficient in ordinary course of nature to cause death. However, his evidence has also not been properly appreciated by the learned trial Judge. Mr. Poojari has further contended that the learned trial Judge has not properly appreciated the evidences of P.W. No. 9-Punambhai Chaturbhai Zala at Exh. 61 who has prepared the map of the scene of offence on 13/5/1994 at Thasra Taluka Panchayat while discharging his duty as Circle Inspector, P.W. No. 10-Nijammudin Gulamrasul Saiyed at Exh. 63 who was entrusted with further investigation and drew panchnama of place of incident and recorded statements of the victim and witnesses and also registered the offence as well as the evidence of P.W. No. 11-Hangamilal Eklingaji Prajapati at Exh. 180 and also of evidence of Executive Magistrate. 6. In view of the evidence of aforesaid witnesses, Mr. Pujari has contended that through the evidence of these witnesses, the prosecution has made an attempt to prove the guilt of the respondents accused and the same is substantiated by documentary evidences led by the prosecution and therefore, from a bare reading of the evidence as a whole and in co-relation with documentary evidences, there is hardly anything justifiable for the learned trial Judge to order an acquittal of the respondents accused. Mr. Pujari has further contended that simply because some of the witnesses have turned hostile is no ground for acquitting the respondents accused. On the contrary, medical evidence and the post mortem examination would clearly indicate that the respondents accused are innocent persons. Mr. Poojari has further contended that even dying declaration which has been recorded at Exh. 65 is clearly indicating the guilt of the respondents accused and there was no earthly reason why dying declaration which was recorded cannot be believed. Mr. Pujari has further contended that apart from this, a mere bad or irregular investigation cannot be made the basis for giving benefit of doubt to the respondents. 65 is clearly indicating the guilt of the respondents accused and there was no earthly reason why dying declaration which was recorded cannot be believed. Mr. Pujari has further contended that apart from this, a mere bad or irregular investigation cannot be made the basis for giving benefit of doubt to the respondents. On the contrary, if the entire evidence is looked into in a conjoint form, a serious offence is committed by the respondents accused as is revealed and Mr. Pujari for that purpose has drawn the attention towards medical evidence from the record as well as from the version of Investigating Officer clearly indicating that offence is committed and therefore, there appears to be a grave error in exercising jurisdiction by the learned trial Judge. Mr. Pujari has further contended that no doubt a detailed order came to be passed but the relevant material has not been properly considered and therefore, since the order in question is not supported by cogent reasons, exercise of jurisdiction is irregular and the finding arrived at appears to be perverse to the record and therefore, this is a fit case in which any leniency is to be shown and therefore, by referring to the evidence on record, Mr. Poojari has contended that the learned trial Judge has committed a serious error in evaluating the evidence. No further submissions have been made. 7. To support the submissions made by learned APP, Ms. Hina Desai, learned advocate appearing for the applicant in Criminal Revision Application No. 448 of 2006 was also heard as said revision is ordered to be heard along with present appeal. Ms. Desai has substantially adopted the stand taken by learned APP, Mr. Poojari and in addition thereto, has contended that there are series of incidents which took place in respect of ill-treatment to the deceased at the hands of the respondents accused. Ms. Desai has further contended that even if no custom is prevailing of demanding dowry, still, there was a specific assertion that ill-treatment was meted out on account of that reason as well and therefore, in such a state of mental and physical torture, the deceased succumbed to serious burn injuries and for that very reason, a specific offence is made out and after investigation, a detailed charge sheet also came to be filed. All these circumstances could not have been ignored by the learned trial Judge before passing an order of acquittal. Ms. Desai has further contended that within a short period, when the deceased came to reside, the incident has occurred which would clearly indicate the guilt of the respondents accused on account of their past experience and therefore, Ms. Desai has contended that there appears to be a serious error committed by the learned trial Judge in passing an order of acquittal. Ms. Desai has further contended that overall reading of evidence is clearly suggesting that there is no cordial relationship and other fact emerging is that mental and physical torture was meted out to the deceased at the hands of the respondents accused and therefore, after separation when the deceased came to reside, within a short span of 16 days, the incident in question has occurred and therefore, charge against the respondents ought to have been scrutinized minutely by learned Presiding Officer. Ms. Desai has reiterated that simply because some of the witnesses have turned hostile, their evidence could have been ignored and on the basis of independent version which is coming out, the order of conviction could have been passed. The incident in question has occurred within a short span and therefore, even statutory presumption is available to the case of the prosecution and therefore, from that angle, atleast the case could have been dealt with. Having not done so, a serious error is committed by the learned trial Judge in passing an order of acquittal and therefore, by adopting the arguments of learned APP, Ms. Desai has requested the Court to reverse the order of acquittal and impose appropriate punishment to the respondents accused by holding them guilty of the offence for which they have been tried. 8. To oppose the stand taken by the respective advocates referred to above, Mr. J.M. Malkan, learned advocate appearing for the respondents accused Nos. 1 to 3 accused, has contended that the case put up by the prosecution has not been established beyond reasonable doubt. Mr. 8. To oppose the stand taken by the respective advocates referred to above, Mr. J.M. Malkan, learned advocate appearing for the respondents accused Nos. 1 to 3 accused, has contended that the case put up by the prosecution has not been established beyond reasonable doubt. Mr. Malkan has suggested that there are series of infirmities touching to the root of controversy reflecting from the evidence on record and therefore, these infirmities are suggesting nothing but presumption of serious doubt and therefore, looking to the well recognized principle of criminal jurisprudence, when the case does not appear to have been proved beyond reasonable doubt, benefit of doubt must go in favour of accused persons and this is exactly the same circumstance which is prevailing on record of the case on hand. By contending this, Mr. Malkan has drawn our attention to the specific charge which was levelled against the respondents accused at Exh. 2 reflecting on page 107 of paper book compilation and then has referred to evidence of Medical Officer as well as FSL report. Mr. Malkan has also drawn the attention of evidence of P.W. No. 6, Dr. Tushar Shah, who performed the postmortem examination of the deceased and by referring to this evidence, he has contended that there was 98% burn injuries. He has further contended that though this Medical Officer has indicated that in some cases, person can speak despite sustaining of such burn injuries. Mr. Malkan has then further referred to post mortem note and has drawn the attention of the Court that in column No. 17, there appears to be no extraordinary injuries, so much so that in other columns more particularly column Nos. 19 and 20, it is reflecting as "N.A.D." and the cause of death which is reflecting in column No. 23 is merely burns injuries as noted down and therefore, this is not a case of suicide nor murder but merely a case of receiving accidental burns and no contrary circumstance is emerging even from the post mortem examination. Mr. Malkan has further drawn the attention to the Medical certificate issued by Dr. H.M. Kothari, appearing on page 551 of paper book compilation wherein, even the accused person, with a view to extinguish the fire and to rescue the deceased, has also sustained injuries. Mr. Malkan has further drawn the attention to the Medical certificate issued by Dr. H.M. Kothari, appearing on page 551 of paper book compilation wherein, even the accused person, with a view to extinguish the fire and to rescue the deceased, has also sustained injuries. Had there been any intention, this attempt could not have been made by the accused and therefore, no inference can be drawn or any guilt can be inferred. Mr. Malkan has further contended that even the prayer for further investigation has not been acceded to even by this Court and for that purpose, a reference is made to an order passed by this Court on 20/10/1999 in Criminal Revision Application No. 538 of 1999 and ultimately contended that said issue was left open for consideration at the time of completion of trial but no such attempt appears to have been made by the prosecution. 9. Mr. Malkan has strenuously contended that Rule Nine theory which is popularly known in assessment of burns clearly indicates that since bottom part of the body has sustained injuries, the version of accidental burn injuries appearing to be true as has been visible from the evidence on record and for that purpose, Mr. Malkan is relying upon Lyon's Medical Jurisprudence & Toxicology, 11th Edition, 2005 more particularly assessment of burns which is reproduced hereinafter: "ASSESSMENT OF BURNS Burns are assessed on two criterion namely the extent and the depth of tissue damage, which has been described earlier. The Rule of Nine may be used to estimate the body surface areas of adults. As per this rule, the following body parts are assessed as each comprising nine percent of the total body surface areas:- Head and neck Front of Chest Back of Chest Front of Abdomen Back of Abdomen Right upper limb Left upper limb Front of right lower limb Back of right lower limb Front of left lower limb Back of left lower limb The Genitalia comprise 1% of body surface areas, thus taking the total to 100%. By adding together the affected areas the percentage of total body surface affected by burns can be calculated. Thus rule does not apply strictly to infants and children. In a child aged one year the head and neck area is taken to be 18% and a child aged five years it is 13% of the total body surface area. By adding together the affected areas the percentage of total body surface affected by burns can be calculated. Thus rule does not apply strictly to infants and children. In a child aged one year the head and neck area is taken to be 18% and a child aged five years it is 13% of the total body surface area. A useful guide for assessment is that an area equal to the size of a patient's hand is 1% of the total body surface area (Wallace)." 10. Mr. Malkan has further drawn the attention of the Court to the evidence of P.W. No. 8, Kiranbhai Somabhai Patel, who is the Medical Officer at Balasinor K & G Hospital. He has asserted and deposed that 2-3 ladies brought the deceased Farzanabanu without any police yadi at about 3.45 p.m. on 13/5/1994 and history was given by those two ladies and not by the deceased. This Medical Officer has deposed specifically that the condition of the deceased was very serious, still, she was in a position to speak as she was in a conscious state of mind. Evidence of this Medical Officer further reveals that those two ladies who brought the deceased have also specifically conveyed that the deceased has sustained accidental burn injuries. Even on 13/5/1994, Executive Magistrate has also taken the statement and at that time also, the deceased was in a conscious state of mind and was in a position to speak and for that purpose, an endorsement was also given by this Medical Officer and therefore, by referring to this evidence, Mr. Malkan is suggesting and contending that right from the beginning, a consistent version is coming out from the record that the deceased was suffering from burn injuries which sustained on account of accident while preparing tea. Even a statement which has been recorded at Exh. 60 of the deceased herself indicates that she was in a conscious state of mind and was in a position to speak and has also stated that nobody has caused any burn injuries and nobody is responsible for such injuries. On the contrary, she herself has conveyed that since the clothes were nylon, suddenly accidental burns were received by her and this statement has been given before the police authority by the deceased herself which is reflecting on page 475 of paper book compilation and from this material also, Mr. On the contrary, she herself has conveyed that since the clothes were nylon, suddenly accidental burns were received by her and this statement has been given before the police authority by the deceased herself which is reflecting on page 475 of paper book compilation and from this material also, Mr. Malkan has contended the respondents accused are not guilty of any offence and therefore, learned Presiding Officer has rightly passed an order of acquittal. Mr. Malkan has further drawn the attention of the Court to dying declaration of the deceased on page 953 of paper book compilation recorded on 13/5/1994 at 17.15 hours wherein in paragraph No. 6 also, she has specifically conveyed that she has sustained accidental burn injuries and on the contrary, this version of the deceased is indicating that family members have tried to extinguish fire which co-relates with the certificate of injury issued by the doctor in respect of one of the accused. It appears from the record that serious grievances have been raised by father of the deceased about the manner in which the investigation has been taken place and the trial is going on but then despite protest and despite order passed by this Court in the earlier proceedings, the prosecution has not established the case beyond reasonable doubt. The grievances raised by the father of the deceased was also examined and considered by the authority and despite that, the evidence which is coming forth from the record is not indicating any guilt of the respondents accused. On more than one occasion, statement of the deceased was taken one by the Executive Magistrate and another before the police authority and in those statements, there appears to be no attribution against the respondents accused and Mr. Malkan has contended that why such dying declaration is not possible to be accepted. Mr. Malkan has contended specifically that the learned trial Judge has rightly appreciated this version of the deceased recorded on more than one occasion by the prosecution, still however, since nothing has emerged from the record, learned Presiding Officer has rightly passed an order of acquittal. Even in the further statements recorded under section 313 of Cr.P.C. on page 199 of paper book compilation also, it has been explained that the deceased Farzanabanu died on account of accidental burns and false case is made out against the respondents accused and therefore, Mr. Even in the further statements recorded under section 313 of Cr.P.C. on page 199 of paper book compilation also, it has been explained that the deceased Farzanabanu died on account of accidental burns and false case is made out against the respondents accused and therefore, Mr. Malkan has contended that especially when the specific plea has been taken in defense as well as the material in question has not established the guilt of the respondents accused beyond reasonable doubt, it cannot be said in any manner that any error is committed by the learned trial Judge in passing the order of acquittal. From the overall material on record, Mr. Malkan has contended that since no case is made out and the findings arrived at by the learned trial Judge are in complete consonance with the evidence on record, in the absence of any illegality or manifest error or miscarriage of justice or any perversity, order of acquittal is not to be altered in exercise of appellate jurisdiction and ultimately contended that the State appeal has no merit. 11. From some of the documents more particularly from the perfunctory preparation of post mortem examination and some of the medical papers reflecting on page 961 onwards of paper book compilation, since the learned advocates representing the parties have not been in a position to clarify with a view to assist the Court, Mr. Ekant Ahuja, learned advocate, was requested to go through the original record, compare the same and assist the court. Mr. Ahuja, after spending his time, has gone through the record but ultimately has found no contradictory material which is available from the present record when comparing with the original record and therefore, what has been placed before the Court is completely co-relating with the record of the present case and therefore, Mr. Ahuja has also shown his helplessness that no distinguishable feature is coming out to take a different look to those documents. On the contrary, the doubt has not been unfolded and it remained as it is from the evidence on record and therefore, he is also unable to conflict with the contention raised by Mr. Malkan. 12. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, following circumstances are appearing to lean in favour of reasonable doubt theory. Malkan. 12. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, following circumstances are appearing to lean in favour of reasonable doubt theory. 12.1 The analysis of the evidence reflects that theory of receiving accidental burns is not possible to be ignored. We have perused the panchnama of scene of offence which is reflecting on page 249 of paper book compilation wherein there do not appear to be any incriminating marks available. Even in the bathroom where the deceased has gone, no smell of kerosene was found nor have any blots of kerosene been found on the floor of the bathroom. This would suggest that sprinkling of kerosene might have taken place and therefore, the theory of sustaining or receiving accidental burns is possible to be believed. Even from the post mortem report, there are no external injuries found on the body of the deceased which would suggest that the respondents accused have done away with the deceased. On the contrary, there appears to be no case of suicide also made out as concluded by the learned trial Judge. Upon examination of further record of the case, we found a medical certificate at Exh. 29 in respect of one of the accused persons Mayyuddin Luhar who sustained burn injuries on the front side which might have sustained on account of his endeavour to save the deceased. Be that as it may, a further examination and analysis of evidence of Medical Officer, Dr. Kiranbhai Patel of Balasinor K&G Hospital, indicates that 2-3 ladies have brought the deceased to the hospital and in the hospital history, it was stated that the deceased sustained burn injuries. But this evidence is suggesting that despite sustaining 98% burn injuries, the deceased was in a conscious state of mind and was in a position to speak. This evidence has further suggested that history which was given by these two ladies was that the deceased sustained accidental burn injuries. The evidence further suggests that at the time when the Executive Magistrate has recorded dying declaration of the deceased at Exh. 60, there is a specific endorsement of doctor that the deceased was in a conscious state of mind to deliver dying declaration. The evidence further suggests that at the time when the Executive Magistrate has recorded dying declaration of the deceased at Exh. 60, there is a specific endorsement of doctor that the deceased was in a conscious state of mind to deliver dying declaration. 12.2 The evidence on record further indicates that Medical Officer of N.G. General Hospital, Balasinor has issued percentage of burns sustained by the deceased which is reflecting on page 469 of paper book compilation at Exh. 57 suggesting that at the bottom portion of the body, there were more percentage of injuries than the upper portion and this co-relates with the version given by the deceased herself that while picking up box of sugar, she fell down on account of which, she sustained burns injuries. This version is corroborated by this certificate at Exh. 57 that almost 34% i.e. 1/3rd percentage of injuries has been found on the bottom part of the body of the deceased. Further analysis of the evidence is also indicating that in dying declaration given in the conscious state of mind, there was an endorsement of the Medical Officer which does not attribute any of the respondents accused and this dying declaration which is recorded at Exh. 60 in the form of statement dated 13/5/1994 also indicates that nobody has caused any burn injuries. On the contrary, on account of accidental burns and the nylon dress, the deceased has said to have received burn injuries. The endorsement of medical officer that she was in a conscious state of mind to give the statement would give a reason to believe this version of the deceased which appears to have been rightly considered by the learned trial Judge. 12.3 In addition to this, even further examination of paper book compilation has suggested that one another medical officer, Dr. Tushar Shah has clearly opined that even in a case of 98% burns, some patients can be in a position to speak and therefore, there is no reason not to believe the dying declaration given by the deceased herself. 12.3 In addition to this, even further examination of paper book compilation has suggested that one another medical officer, Dr. Tushar Shah has clearly opined that even in a case of 98% burns, some patients can be in a position to speak and therefore, there is no reason not to believe the dying declaration given by the deceased herself. It is further reflecting from the record that Executive Magistrate has also recorded dying declaration of the deceased on 13/5/1994 at 17.15 hours in which in paragraph No. 6 also, she has specifically indicated that she sustained burn injuries while preparing tea for which, nobody is responsible and this dying declaration recorded by the Executive Magistrate is appearing at Exh. 65 on page 953 of paper book compilation clearly indicating that consistent version is coming even from the deceased on more than one occasion that she has sustained accidental burn injuries. 12.4 Now in respect of further examination of material on record in addition to the aforesaid medical evidence, parents have been examined by the prosecution. Mother of the deceased, P.W. No. 4, Salmabanu Mahammadhusen Luhar examined at Exh. 23, has deposed before the Court that when she saw the deceased in the hospital, she was practically dead and not in a position to speak and therefore, the mother had no chance of knowing the exact circumstance from the deceased during last hours of her life and therefore, in the absence of any contrary material, the Court appears to have rightly gone to rely upon the deceased which has been recorded on more than one occasion. The version of mother, on the contrary, is indicating that while preparing tea, the deceased has sustained burn injuries. 12.5 Yet another witness examined by the prosecution namely, P.W. No. 5, Ismail @ Lalabhai Luhar examined at Exh. 24, has not supported the case of the prosecution and therefore, this witness has been declared as hostile. When this witness has been cross-examined with the permission of the Court, he has indicated that the deceased must have been living comfortably and this witness has admitted that there was a compromise and upon assurance, the deceased has gone to the in-law's place. This witness has not indicated anything further and therefore, is not throwing any much light on the case of the prosecution. This witness has not indicated anything further and therefore, is not throwing any much light on the case of the prosecution. 12.6 The prosecution with a view to prove the case has examined Yusufbhai Bhurabhai Khokhar as P.W. No. 7 at Exh. 30. However, from his evidence, the exact responsibility of any of the person in the commission of crime is not coming forth. He has given a reference of some compromise talks which were going on but then this witness is not indicating beyond that and therefore, from overall consideration of material on record, there is no stinking material coming out which would suggest any contrary possible view than what has been taken by the learned trial Judge. 13. We have carefully considered the entire evidence on record even independently with a view to find out a circumstance which can unfold the doubt which has been prevailing on record about the guilt of the respondents accused but then also, there appears to be no other enough circumstance or material to suggest a different view and therefore, the Court has to go back to justify the conclusion and finding which has been arrived at by the learned trial Judge in the context of evidence which has been assessed independently by us. This re-assessment of evidence has been undertaken by the Court with a view to find out the exact circumstance which can connect the link with the respondents accused since time and gain the grievance is tried to be raised by the father about irregular exercise of investigation at the hands of police officers. However, ultimately, the Court has to consider the evidence as a whole with a view to see whether exercise of jurisdiction by the learned trial Judge is reflecting any manifest error or perversity and for that purpose, the detailed reasons which have been assigned by the learned trial Judge have been analysed by the Court and from paragraph 26 onwards, the learned trial Judge appears to have examined each and every evidence available on record in the context of charge for which the respondents accused have been tried. The learned trial Judge has also tested the case of the prosecution by considering the fact that incident in question has occurred within a span of seven years from the date from where the deceased has gone to in-laws's place and by raising that presumption also, an attempt is made by the learned trial Judge to examine the evidence. However, evidence on record led by the prosecution is not cogent enough to substantiate the grievance raised by the complainant. On the contrary, from material available on record, there is a specific finding arrived at by the learned trial Judge that the marriage has not taken place with accused No. 1 on account of any condition pertaining to dowry. There is no material coming forth which would suggest that incident in question has happened on account of some demand of dowry. On the contrary, on the basis of evidence of the complainant, wife of the complainant as well as Yusufbhai, the learned trial Judge has found that there is no ill-treatment meted out to the deceased on account of any dowry demand. In paragraph No. 27 of the judgment, there is a categorical finding arrived at by the learned trial Judge based upon evidence on record. 14. On examining further through the reasons assigned by the learned trial Judge and considering the evidence of Investigating Officer, Circle Inspector, the map of scene of offence, evidence of P.W. No. 9, Punambhai at Exh. 61, photographs and the panchnama of scene of offence, it appears that the place of occurrence of incident is not bathroom or branches of tree. The learned trial Judge has also examined in detail the evidence of medical officer as well as dying declaration and found no other extraordinary different circumstance to disbelieve the dying declaration and therefore, when dying declaration is recorded by the Executive Magistrate and the doctor has clearly suggested that the deceased was in a conscious state of mind while giving dying declaration, there was no other circumstances available on record to disbelieve the dying declaration. Therefore, though the finding is arrived at by the learned trial Judge about Exhs. 65 and 67 that the same have been recorded in an irregular manner, the Court found no other contrary circumstance to disbelieve the same. Therefore, though the finding is arrived at by the learned trial Judge about Exhs. 65 and 67 that the same have been recorded in an irregular manner, the Court found no other contrary circumstance to disbelieve the same. Of course, the same do not benefit the accused but then there appears no other circumstance in the form of finding emerging from the record. 15. The learned trial Judge while examining the entire case of the prosecution has applied Rule of Nine in the context of burning cases from Lyon's Medical Jurisprudence & Toxicology, 11th Edition, 2005. By applying said Rule Nine, the learned trial Judge has considered the injury certificate at Exh. 57 and specifically concluded that it is not possible to believe that any attempt is made by the respondents accused to set the deceased on fire and this specific finding is arrived at by the learned Judge on analysis of the evidence on record which is reflecting in paragraph No. 29 of the judgment and order. From an overall reading of the order of acquittal, it clearly transpires that each and every evidence in detail is examined by the learned trial Judge and arrived at a particular finding in favour of the respondents accused. Upon independent analysis of evidence as well, we have not found any perversity in the reasons assigned by the learned trial Judge and therefore, in the absence of any illegality or non-application of mind or material error, we are unable to disagree with the order of acquittal passed by the learned trial Judge. On going through the medical evidence, evidence of witnesses, medical certificates issued by the doctors, dying declaration which have been recorded and the injury certificates of the deceased as well as one of the accused, there appears to be a serious doubt about the guilt of the respondents accused and in such a situation, when there appears to be no stinking distinguishable material available on record, the conclusion arrived by the learned trial Judge appears to be plausible and possible view is taken by the learned trial Judge which is not in a position to be dislodged. The grievances which have been voiced out by the complainant ought to have been taken care by the prosecution but it appears that despite the same having been reflecting on the record, the prosecution has not made any serious attempt to erase those doubts and therefore, the prosecution does not appear to have proved the case beyond reasonable doubt as rightly held by the learned trial Judge. The detailed order which has the support of cogent reasons cannot be said to be a perverse order nor can be branded as manifest error or miscarriage of justice and therefore, in the absence of such scenario available on record, we may deem it proper not to interfere with the judgment and order passed by the learned Presiding Officer. We have also considered the entire evidence on record and we have more particularly considered the defense which has been taken by the respondents accused in the form of further statements recorded under section 313 of Cr.P.C. and considering that angle also, it cannot be said that any manifest error is committed by the learned trial Judge in passing the impugned order and therefore, when the prosecution has not bee able to prove the case beyond reasonable doubt, the theory of doubt is leaning in favour of the respondents accused and therefore, the judgment and order is not in a position to be reversed and accordingly, we found that there appears to be no merit in the appeal filed by the State. 16. While independently examining the evidence on record and upon detailed scrutiny of the judgment and order passed by the learned Presiding Officer, we are also mindful of the fact that sitting in an appellate jurisdiction more particularly dealing with an appeal against an order of acquittal, there is a well defined scope to interfere which is propounded by catena of decisions. Some of those decisions are taken into consideration by this Court while dealing with the present case on hand and we deem it proper to reproduce the same to justify our conclusion. Following are the exerts from those decisions: 16.1 In case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr. (2006) 6 SCC 39 , the Apex Court has narrated the powers of High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under: "54. Following are the exerts from those decisions: 16.1 In case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr. (2006) 6 SCC 39 , the Apex Court has narrated the powers of High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under: "54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below." 16.2 In another decision delivered by the Supreme Court in case of Sureshkumar v. State of Haryana, reported in (2013) 16 SCC 353 , it was observed that if two views are possible, the High Court should hold in favour of the accused and should not interfere with an order of acquittal. The relevant observations of the decision are reflected in paras 55, 56 and 57 which read as under: "55. The second contention is that the High Court ought not to have interfered in the acquittal by the Trial Court. It was submitted that if two views are possible, the High Court should lean in favour of the accused and should not interfere with an acquittal. 56. A few years ago, the law on the subject was culled out from a large number of decisions and summed up in Ghurey Lal v. State of U.P. (2008) 10 SCC 450 : AIR 2009 SC (Supp) 1318 : 2008 AIR SCW 6598 as follows: "1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law. 2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. 3. Due or proper weight and consideration must be given to the trial court's decision. 2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. 3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal: 1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when: (i) The trial court's conclusion with regard to the facts is palpably wrong; (ii) The trial court's decision was based on an erroneous view of law; (iii) The trial court's judgment is likely to result in "grave miscarriage of justice"; (iv) The entire approach of the trial court in dealing with the evidence was patently illegal; (v) The trial court's judgment was manifestly unjust and unreasonable; (vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. (vii) This list is intended to be illustrative, not exhaustive." 57. (vii) This list is intended to be illustrative, not exhaustive." 57. Learned counsel for Suresh Kumar referred to S. Anil Kumar v. State of Karnataka, (2013) 7 SCC 219 : 2013 AIR SCW 6180, particularly paragraph 14 of the Report wherein reliance was placed on Rohtash v. State of Haryana, (2012) 6 SCC 589 : AIR 2012 SC 2297 : 2012 AIR SCW 3318 to conclude that it is "only in exceptional cases where there are compelling circumstances and where the judgment in appeal is found to be perverse, can the High Court interfere with the order of acquittal." In Rohtash it was further observed: "The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (Vide State of Rajasthan v. Talevar, (2011) 11 SCC 666 : AIR 2011 SC 2271 : 2011 AIR SCW 3889 and Govindaraju v. State, (2012) 4 SCC 722 : AIR 2012 SC 1292 : 2012 AIR SCW 1994)." 16.3 In yet another decision in the case of Ramaiah @ Rama v. State of Karnataka, 2014 (9) SCC 365 , it has been held by Hon'ble Apex Court that if two views are possible on the evidence adduced and the one favourable to the accused has been taken by the trial court, it should not be disturbed. It has been observed in paras 30 and 31 as under: "30. This very principle of law was formulated by the Court in M. Madhusudhan Rao (supra) in the following manner: "13. There is no embargo on the appellate court to review, reappreciate or reconsider the evidence upon which the order of acquittal is founded. Yet, generally, the order of acquittal is not interfered with because the presumption of innocence, which is otherwise available to an accused under the fundamental principles of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a court of law, gets further reinforced and strengthened by his acquittal. It is also trite that if two views are possible on the evidence adduced in the case and the one favourable to the accused has been taken by the trial court, it should not be disturbed. It is also trite that if two views are possible on the evidence adduced in the case and the one favourable to the accused has been taken by the trial court, it should not be disturbed. Nevertheless, where the approach of the lower court in considering the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to the characterized as perverse, then, to prevent miscarriage of justice, the appellate court is obliged to interfere. 14. All these principles have been succinctly culled out by one of us (C.K. Thakker, J.) in Chandrappa and Ors. v. State of Karnataka, (2007) 4 SCC 415 : AIR 2007 SC (Supp) 111 : 2007 AIR SCW 1850." 31. In Chandrappa (supra), which was followed in the aforesaid case, the Court had observed: "44. In our view, if in the light of above circumstances, the trial court felt that the accused could get benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, even though we are of the opinion that in an appeal against acquittal, powers of the appellate court are as wide as that of the trial court and it can review, reappreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the present case, the view taken by the trial court for acquitting the accused was possible and plausible. On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is well established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not to be disturbed by the appellate court. In this case, a possible view on the evidence of prosecution had been taken by the trial court which ought not to have been disturbed by the appellate court. In this case, a possible view on the evidence of prosecution had been taken by the trial court which ought not to have been disturbed by the appellate court. The decision of the appellate court (the High Court), therefore, is liable to be set aside." 16.4 In the case of Upendra Pradhan v. State of Orissa, reported in 2015 (5) SCALE 634 , the Supreme Court while dealing with an order of the High Court in acquitting appeal, has observed as under: "10. Taking the First question for consideration, we are of the view that in case there are two views which can be culled out from the perusal of evidence and application of law, the view which favours the accused should be taken. It has been recognized as a human right by this Court. In Narendra Singh and another v. State of M.P. (2004) 10 SCC 699 : AIR 2004 SC 3249 , this Court has recognized presumption of innocence as a human right and has gone on to say that: "30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof. It is equally well settled that there is a long distance between 'may be' and 'must be'. 31. It is also well known that even in a case where a plea of alibi is raised, the burden of proof remains on the prosecution. Presumption of innocence is a human right. Such presumption gets stronger when a judgment of acquittal is passed. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a Higher Court (See Dhanna v. State of M.P., Mahabir Singh v. State of Haryana and Shailendra Pratap v. State of U.P.) which had not been adhered to by the High Court. xxx xxx xxx xxx xxx 33. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a Higher Court (See Dhanna v. State of M.P., Mahabir Singh v. State of Haryana and Shailendra Pratap v. State of U.P.) which had not been adhered to by the High Court. xxx xxx xxx xxx xxx 33. We, thus, having regard to the post-mortem report, are of the opinion that the cause of death of Bimla Bai although is shrouded in mystery but benefit thereof must go to the appellants as in the event of there being two possible views, the one supporting the accused should be upheld." (Emphasis Supplied) 16.5 What aspects are to be borne in mind while dealing with appeals against acquittal have been reiterated by the Hon'ble Apex Court in the case of V. Sejappa v. State by Police Inspector, Lokayukta, Chitradurga, reported in 2016 AIR (SC) 2045. Paras 21 and 22 of the said decision read as under: "21. If the evaluation of the evidence and the findings recorded by the trial court does not suffer from any illegality or perversity and the grounds on which the trial court has based its conclusion are reasonable and plausible, the High Court should not disturb the order of acquittal if another view is possible. Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. In State through Inspector of Police, A.P. v. K. Narasimhachary, (2005) 8 SCC 364 , this Court reiterated the well settled principle that if two views are possible, the appellate court should not interfere with the acquittal by the lower court and that only where the material on record leads to an inescapable conclusion of guilt of the accused, the judgment of acquittal will call for interference by the appellate court. The same view was reiterated in T. Subramanian v. State of T.N. (2006) 1 SCC 401 . 22. In Muralidhar alias Gidda and Anr. v. State of Karnataka, (2014) 5 SCC 730 , this Court noted the principles which are required to be followed by the appellate court in case of appeal against order of acquittal and in paragraph (12) held as under:- "12. 22. In Muralidhar alias Gidda and Anr. v. State of Karnataka, (2014) 5 SCC 730 , this Court noted the principles which are required to be followed by the appellate court in case of appeal against order of acquittal and in paragraph (12) held as under:- "12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu AIR 1954 SC 1 , Madan Mohan Singh AIR 1954 SC 637 , Atley AIR 1955 SC 807 , Aher Raja Khima AIR 1956 SC 217 , Balbir Singh AIR 1957 SC 216 , M.G. Agarwal AIR 1963 SC 200 , Noor Khan AIR 1964 SC 286 , Khedu Mohton (1970) 2 SCC 450 , Shivaji Sahabrao Bobade (1973) 2 SCC 793 , Lekha Yadav (1973) 2 SCC 424 , Khem Karan (1974) 4 SCC 603 , Bishan Singh (1974) 3 SCC 288 , Umedbhai Jadavbhai (1978) 1 SCC 228 , K. Gopal Reddy (1979) 1 SCC 355 , Tota Singh (1987) 2 SCC 529 , Ram Kumar (1995) Supp 1 SCC 248, Madan Lal (1997) 7 SCC 677 , Sambasivan (1998) 5 SCC 412 , Bhagwan Singh (2002) 4 SCC 85 , Harijana Thirupala (2002) 6 SCC 470 , C. Antony (2003) 1 SCC 1 , K. Gopalakrishna (2005) 9 SCC 291 , Sanjay Thakran (2007) 3 SCC 755 and Chandrappa (2007) 4 SCC 415 . It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court; (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal; (iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; (iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court." 17. From the aforesaid overall analysis of evidence on record coupled with the examination of reasons assigned and the findings arrived at by the learned trial Judge and in consideration of aforesaid propositions of law laid down by the Hon'ble Apex Court, we are of the considered opinion that the appeal filed by the State is not possible to be accepted and there appears to be no perversity or illegality in the order impugned in the present appeal. We are, therefore, of the opinion that the appeal filed by the State requires to be dismissed by confirming the judgment and order passed by the learned Presiding Officer. 18. The present appeal is dismissed. The judgment and order, dated 25.2.2006, passed in Sessions Case No. 290 of 1995, by the learned Presiding Officer, 11th Fast Track Judge, Nadiad, is hereby confirmed. Bail bonds shall stand discharged. Record and Proceedings be sent back to the trial Court concerned, forthwith. 19. In view of order passed in Criminal Appeal, Criminal Revision Application No. 448 of 2006 stands disposed of accordingly.