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2025 DIGILAW 666 (GUJ)

State Of Gujarat v. Koli Babubhai Popatbhai

2025-07-05

HASMUKH D.SUTHAR, PRANAV TRIVEDI

body2025
JUDGMENT : HASMUKH D. SUTHAR, J. 1 This appeal is directed under Section 378 of the Code of Criminal Procedure (hereinafter referred to as “the Code” for short) against the judgement and order of acquittal dated 19.07.2003 passed by the learned Additional Sessions Judge, Fast Track Court, Dhrangadhra in Sessions Case No.15 of 2000, whereby, the learned Sessions Court acquitted the respondent for the offence punishable under Sections 307 and 302 of the INDIAN PENAL CODE . 2 The following noteworthy facts emerges from the record of the appeal: 2.1 The prosecution case in brief is that the complainant-Hakiben Gagjibhai had illicit relationship with the accused Koli Babubhai Popatbhai of Halvad. They often quarreled with each other during their illicit relationship. 2.2 It is further the case of the prosecution that on 14.04.2009, at about 9:00 PM in the night, when the complainant was present at her home, the accused came on the bicycle and started quarreling with the complainant and on being asked to not to quarrel, the accused got angry on the complainant and in that moment of anger and excitement, sprinkled kerosene on the complainant and set the complainant on fire with matchstick. 2.3 It is further the case of the prosecution that on being burnt by the accused, the complainant started shouting loudly, due to which her sister Lila rushed to the place of offence and extinguished the fire. Thereafter, she was taken to a private hospital and then shifted to Civil Hospital, Morbi for further treatment where, during the treatment the police recorded the statement of the complainant and the Executive Magistrate too recorded her Dying Declaration. The complainant succumbed to the injuries and died on the next day i.e. 15.04.2000. 2.4 Accordingly, FIR being C.R No. 34/2000 was lodged before the Halvad Police Station. At the end of the investigation, chargesheet was filed against the accused before the trial Court. However, since it was a sessions triable offence, the case was committed to Sessions Court and ultimately trial was initiated and charges came to be framed below Exh.15 as under: On 14.04.2000 at 21:30 pm, as the accused was having affair with the deceased- complainant Hakiben, entered in her home and sprinkled the kerosene and set her ablaze on fire and thereby he has committed an offence under Sec.302 of the INDIAN PENAL CODE . The accused pleaded not guilty and claimed to be tried. 2.5 At the trial, in order to bring home the charges levelled against the accused, the prosecution examined several witnesses and also relied upon the documentary evidences, which are as under: List of Oral Evidence: Sr No. PW No. Name of the witness Exh.No. 1 PW-1 Dr.Mahendrabhai Amrutlal Sanghvi 47 2 PW-2 Kantilal Gokalbhai 50 3 PW-3 Dr.Devkaran Mohanbhai Kagathara 53 4 PW-4 Vijayaben Hirabhai Valand 56 5 PW-5 Dr.Rampyare Prasadverma 57 6 PW-6 Ramnikbhai Hirabhai 60 7 PW-7 Ramjibhai Chhanabhai 62 8 PW-8 Bhagwanbhai Hamirbhai 64 9 PW-9 Dahyalal Amrishbhai 66 10 PW-10 Samjuben Nileshbhai 69 11 PW-11 Pramilaben Batukbhai 70 12 PW-12 Leelaben Gagjibhai 71 13 PW-13 Dhirubhai Laljibhai 72 14 PW-14 Gopalbhai Bhagubhai 73 15 PW-15 Kokilaben Haribhai 74 16 PW-16 Nirubhai Kanubha 75 17 PW-17 Bhavansinh Khumansinh 76 18 PW-18 Dr.Pragjibhai JethabhaiBhadeja 79 19 PW-19 Harishbhai Harshadbhai Gandhi 83 20 PW-20 Shravanbhai Rambhai Varu 88 21 PW-21 Pradipbhai GhanshyamsinhJadeja 95 List of documentary evidences Sr No. Description Exh.N o. 1 Yadi sent to Morbi Police Station 48 2 Post Mortem note of the deceased Hakiben 49 3 Yadi by the PSI, Halvad to Mamlatdar 51 4 Map of the incident 52 5 Consent letter to the doctor 54 6 Certificate of the injury caused to Babubhai Popatbhai 55 7 Certificate of the injury caused to the deceased-Hakiben 58 8 Case papers of Hakiben 59 9 Inquest Panchnama 63 10 Panchnama of the place of offence 61 11 Panchnama of detention of the accused-Babubhai 65 12 Panchnama of voluntary discovery of half burnt shirt by the accused himself. 67 13 Original copy of Station diary Entry No.2 of 2000 77 14 Transfer chit of Halvad Medical Officer 80 15 Case papers of the deceased Hakiben (Total pages 5) 82 16 Case papers of the deceased Hakiben 81 17 Yadi for D.D 84 18 Dying Declaration 85 19 Yadi to P.S.I, Halvad from F.S.L.Junagadh 89 20 Receipt of Muddamal to FSL 90 21 Original copy of Entry No.21/2000 96 22 Copy of Halvad Police Station Diary No. 23/2000 97 23 Copy of Halvad Police Station Diary No.16/2000 98 24 Copy of Incoming Telephonecalls of Halvad Police station dated 15/04/2000 99 25 Yadi sent to Dr.Kagathra by PSI, Halvad. 100 26 Original Complaint 101 27 Pursis of the witness being dropped 102 28 Pursis of closure of evidence 103 2.6 After recording the evidence, further statements of the accused under Sec.313 came to be recorded, thereafter, the accused himself examined the defence witnesses as under: Defence witness Name of the Defence Witness Exh.No. 1 Nilesh Mahadevbhai 105 2 Samjuben Shankarbhai 106 3 Savitaben Babubhai 107 2.7 Upon hearing the arguments on behalf of the prosecution and the defence, the learned Trial Court acquitted present respondent- accused from the offence under Section 307 and 302 of the INDIAN PENAL CODE vide impugned judgement and order of acquittal dated 19.07.2003 in Sessions case No. 15 of 2000, as mentioned above. 2.8 Being aggrieved by the same, the appellant – State preferred present appeal under Section 378 of the Code of Criminal Procedure, 1973. 3 Heard learned advocates appearing for the respective parties. 4 Learned APP Ms.Shruti Pathak had submitted that the learned Trial Court committed an error in appreciating the evidence though there was ample evidence on record to convict the accused. 4.1 Ms.Pathak, learned APP, further submitted that the deceased and the present accused both were having illicit relationship and that the accused had poured the kerosene on the deceased. Moreover, the accused was found coming out from the house of the deceased with a can of kerosene in his hand. Even otherwise, the accused has also sustained the injury and was treated by the doctor who was also examined. Hence, the presence of the accused is very much established at the place of offence. 4.2 She submitted that the brother and the sister of the deceased also has deposed about the intention and motive of the applicant- accused. The brother and the sister deposed that when they reached the hospital, the deceased was crying out loudly and telling them that the accused-Babu had burnt her. The same fact is also corroborated by the Dying Declaration recorded by the Executive Magistrate. 4.3 Referring to the deposition of the Executive Magistrate below Exh.83, Ms.Pathak, learned APP, submitted that the deposition of the learned Executive Magistrate clearly suggest the involvement of the present applicant-accused, and therefore, there was no reason for the learned Trial Court to discard the evidence of Executive Magistrate. 4.3 Referring to the deposition of the Executive Magistrate below Exh.83, Ms.Pathak, learned APP, submitted that the deposition of the learned Executive Magistrate clearly suggest the involvement of the present applicant-accused, and therefore, there was no reason for the learned Trial Court to discard the evidence of Executive Magistrate. 4.4 To buttress her argument, learned APP Ms.Pathak, relied on a decision in the case of State of Madhya Pradesh Vs. Dalsingh & Ors., reported in (2013) 14 SCC 159 ., and submitted that the learned Trial Court has committed an error in discarding the evidence of the Executive Magistrate on the ground that he had not verified about the consciousness of the deceased, but when the doctor has put the signature, the dying declaration itself inspires confidence. Ms.Pathak, learned APP would further submit that even such minor nature discrepancy in the evidence would not warrant acquittal to the respondent. 4.5 Ms.Pathak, learned APP, would further submit that the deceased herself has given a complaint which tantamounts to Dying Declaration. She would further submit that the learned Trial Court has committed an error in discarding the evidence of the police witness and other witnesses and hence requested this Court to allow the present appeal and to convict the accused. 5 Per Contra, the respondent has supported the impugned Judgement and Order and contended that the Trial Court has properly appreciated the evidence and the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt. Hence, the respondent requested to dismiss the appeal as the impugned Judgement and Order of acquittal does not warrant any interference. 6 Perusing the evidence of PW-1, namely, Dr.Mahendrabhai Amrutlal Sanghavi, who has given the treatment to the deceased, conducted the Post-Mortem of the deceased. Perusing the Post-Mortem Note and the evidence of the doctor, an undisputed fact has come on record that the deceased has succumbed to death due to 90% of the injuries caused by burn. The doctor has issued the Post-Mortem Note below Exh.49. Hence, factum of the death is proved on record. 6.1 Now, the question remains only as to whether the prosecution is able to prove the case beyond all reasonable doubt to bring home the guilt of the present accused. The doctor has issued the Post-Mortem Note below Exh.49. Hence, factum of the death is proved on record. 6.1 Now, the question remains only as to whether the prosecution is able to prove the case beyond all reasonable doubt to bring home the guilt of the present accused. As per the case of the prosecution, on the fateful day, the accused entered into home of the deceased and quarrelling took place and during the said browl, the accused sprinkled kerosene and then set the deceased on fire. Hence, the prosecution ought to prove the said fact. In the cross-examination, the doctor – PW-1, has admitted that he has noticed superficial burns of first degree, but 90% of the burns is not seriously disputed by the defence. 6.2 Prosecution Witness No.2, namely, kantilal Gokalbhai, Exh.50, has as per the map of scene of offence, has admitted the panchnama, which is produced at Exh.52. Panchnama Witness No.3, namely, Dr.Devkaran Mohanbhai Kagathara, Exh.53, is a doctor in his hospital before whom the accused has given the history that due to bursting of stove he sustained superficial burn injury. The prosecution has relied on the evidence of the said witness and tried to prove that the accused was present and he also sustained the injury. Herein, the prosecution has not explained any injury caused to the accused, how he has sustained the injury. As per the say of the accused, due to bursting of the stove he has sustained the injury. Learned APP has disputed the said version on the ground that in panchnama no stove is found or no evidence of bursting of stove is established. Be that as it may be, but the accused himself has sustained injury. Even for the sake of argument it is accepted that the accused was present at the spot, but he has also sustained the injury while rescuing the deceased or for any other reason the accused has sustained the injury remains a question on the record and the prosecution has not explained the injury in this regard as to how the accused has sustained the injury. Hence, evidence of the said witness, Dr.Devkaran Mohanlal Kagathara is not helpful to presume that the accused was present but he has sprinkled the kerosene and he has set the deceased on fire. Hence, evidence of the said witness, Dr.Devkaran Mohanlal Kagathara is not helpful to presume that the accused was present but he has sprinkled the kerosene and he has set the deceased on fire. Merely based on the evidence of the said witness, no presumption or no interference can be drawn. 6.3 Another witness, namely, PW-4,Vijayaben Hirabhai Valand, Exh.56, has stated that the deceased came out from the home and at that time she had rescued her. Except this, no any evidence helpful to the present applicant is given by the said witness. PW-5, Dr.Rampyare Prasadverma, Exh.57, has given primary treatment to the deceased and at that time she was unconscious and her condition was deteriorating but no history was given before him. He has treated the deceased from 11:15 pm to 1:00 AM. In his presence Mamlatdar came, but thereafter, he has never contacted the Mamlatdar as she was referred to the civil hospital for the further treatment. 6.4 Evidence of the panch witnesses of scene of offence is recorded at Exh.61. PW-6 is a panch witness who has turned hostile. Prosecution has also relied on the evidence of PW-7, Ramjibhai Chhanabhai, who happens to be the brother of the deceased and he is also panch witness of Inquest Panchnama produced below Exh.61. The said witness, having no personal knowledge stated that when he reached Morbi Hospital, at that time, deceased was crying who told him that the accused has burnt her. But in the cross-examination, the said witness has stated that the said fact he had disclosed before the Court at first time and as per the say of the police, he has put his signature in the panchnama. Hence, evidence of the said witness Ramjibhai Chhanabhai does not inspire confidence as first time he has disclosed the said fact before the Court and in absence of any corroborative piece of evidence. PW-8, Bhagwanbhai Hamirbhai has also turned hostile. He did not support the case of the prosecution. PW-9, Dahyalal Amrishbhai has also turned hostile. He is a panch witness of the discovery panchnama. The prosecution has failed to prove the discovery and recovery on the record as panch witnesses has turned hostile and even the Investigating Officer has not deposed the factum of the said recovery as per the law. PW-10, Samjuben Nileshbhai is also examined who has turned hostile. He is a panch witness of the discovery panchnama. The prosecution has failed to prove the discovery and recovery on the record as panch witnesses has turned hostile and even the Investigating Officer has not deposed the factum of the said recovery as per the law. PW-10, Samjuben Nileshbhai is also examined who has turned hostile. In the cross-examination of the said witness also, nothing fruitful has come on record which can give any assistance to the prosecution’s case as she has admitted in the cross-examination by the defence that she was not present at the spot and therefore, the question of her personal knowledge about the incident does not arise. 6.5 PW-11, Premilaben Batukbhi Dave has also turned hostile. She was declared hostile and in her cross-examination, she has stated that the deceased has committed suicide herself. Prosecution has mainly relied on the evidence of Leenaben Darnibhai, Exh.74, PW-12. She happens to be the sister of the deceased. She had deposed that she is an eye witness and she was present and she had seen the accused entering the home of the deceased and at that time quarrel took place and she had seen the accused coming out from the house of the deceased with can of kerosene. In her cross- examination, she has admitted that she had not disclosed the aforesaid fact before the police and in her evidence the improvement is noticed. Nonetheless, if we peruse the evidence of the said witness, it appears that she is a chance-witness. Due to the improvement and considering the evidence of the other witnesses, the evidence of the said witnesses does not inspire the confidence. 6.6 If we accept the said evidence even though which corroborates the fact that the accused having illicit relationship with the deceased, except this nothing has come out from the record, which can be of help to the case of the prosecution. Accused has burnt her, hence, to connect the accused with an offence, the evidence of the said witness is not enough and inspire any confidence. To convict the accused, the evidence of sterling quality is required. Suspicion however may be strong, it was never proved. 6.7 Prosecution has relied thereafter on the evidence of the Executive Magistrate and Dying Declaration. It is true that to record the conviction the dying declaration should inspire confidence. To convict the accused, the evidence of sterling quality is required. Suspicion however may be strong, it was never proved. 6.7 Prosecution has relied thereafter on the evidence of the Executive Magistrate and Dying Declaration. It is true that to record the conviction the dying declaration should inspire confidence. Herein, in light of the evidence produced to Exh.72, PW-13, Dhirubhai Laljibhai, has stated that after 10 O’clock when the deceased was brought to the hospital in his chhakada, at that time she was unconscious till he reached to the hospital. The evidence of the doctor too, who has given primary treatment stated that she was going to faint during the treatment. Hence, the said fact is corroborated by the version of the two witnesses. The Executive Magistrate Harish Harshadrai Gandhi, PW-19, Exh.83, has recorded the dying declaration at 23:45 hours, but he has not taken any endorsement of the doctor while recording the dying declaration. He has received the signature of doctor after getting over of recording of dying declaration. But in the cross-examination, he has stated that he has not taken any endorsement of the doctor for consciousness of the deceased. In view of the above, consciousness of the victim itself is in question. 6.8 Perusing the evidence of the PSO, PW-17, Bhawansinh Khumansinh Parmar, in the complaint the time is not mentioned when the complaint was registered and on the blank paper, in margin he has put his signature and he is unable to say anything about the endorsement in the margin. An evasive reply is given by him as and when he has put the endorsement on the paper and he has never visited the Halvad Hospital. Hence, the PSO having no any personal knowledge, the complaint was handed over to him by PW-16, Nirubha Kanubha Jadeja. Perusing the evidence of the said witness, he has received the telephone vardhi Entry No.19 of 2000 at 13:15 AM from the hospital and during the treatment, the deceased died at 1:00 O’clock, and thereafter, he reached to the hospital and the Executive Magistrate came their for preparation of the Inquest Panchnama. Hence, nothing is clear or clarified on the record. As per the Police Report she has expired at 1:00 AM after she succumbed to death Nirubha Jadeja reached the hospital prior to the death of the victim and he has received the Complaint. Hence, nothing is clear or clarified on the record. As per the Police Report she has expired at 1:00 AM after she succumbed to death Nirubha Jadeja reached the hospital prior to the death of the victim and he has received the Complaint. 6.9 In view of the above the corroboration of version of the complaint also does not lend any support to the dying declaraton. In absence of any corroborative piece of evidence and more particularly in the suspicious circumstances, the only Dying Declaration does not inspire confidence. Hence, merely based on the dying declaration is not expedient to hail the accused guilty. 7 Perusing the evidence of the defence witness, it appears that the alleged incident took place at 2 pm, while as per the case of the prosecution, the incident took place at 20:30 pm, and there is a variation in the time of incident. The said witness is dropped by prosecution which is examined as a defence witness by the accused. Those witnesses dropped by the prosecution is examined by the defence witness. Perusing the said evidence of the witness, there is a contradiction in the time and even merely based on the evidence of the dying declaration it is not expedient to hail the accused guilty. In this regard, reference is required to be made to AIR 2023 (SC) 4129 in the case of Irfan @ Naka vs. State of Uttar Pradesh ., wherein, it is held that dying declaration while carrying presumption of being true must be wholly reliable and inspire confidence. Where there is any suspicion over veracity of same or evidence on record shows that dying declaration is not true, it will only be considered as a piece of evidence which can never form the basis for conviction alone. There is no hard and fast rule for determining that when a dying declaration be accepted. It is duty of prosecution to establish charge against the accused beyond reasonable doubt. It is a well settled proposition of law that benefit of doubt must always go in favour of the accused. It is unsafe to record conviction on the basis of a dying declaration alone in cases where suspicion is raised as regards correctness of dying declaration. It is duty of prosecution to establish charge against the accused beyond reasonable doubt. It is a well settled proposition of law that benefit of doubt must always go in favour of the accused. It is unsafe to record conviction on the basis of a dying declaration alone in cases where suspicion is raised as regards correctness of dying declaration. Hence, the authority relied upon by the prosecution in the case of Dal Singh (supra) is not helpful to the applicant in view of a criminal case is required to be decided based on its own facts and merits. Slight difference in the fact makes huge difference. In this regard, reference is required to be made to the decision of Hon’ble Apex Court in the case of Parasa Raja Manikyala Rao And Anr. vs State Of A.P. reported in AIR 2004 SC 132 , wherein it has been observed and held as under: “...Each case, more particularly a criminal case depends on its own facts and a close similarity between one case and another is not enough to warrant like treatment because a significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore on which side of the line a case falls, the broad resemblance to another case is not at all decisive.” 8 Scope and interference by the appellate Court in acquittal appeal is very limited. To decide therefore on which side of the line a case falls, the broad resemblance to another case is not at all decisive.” 8 Scope and interference by the appellate Court in acquittal appeal is very limited. The Hon'ble Supreme Court has discussed the scope and interference in acquittal appeal in the case of Sheo Swarup v. King Emperor , AIR 1934 PC 227 and held as under:- "While dealing with an appeal against acquittal, the High Court should and will always give proper weight and consideration to such matters as- (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." 8.1 Further, considering the law laid down in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka , 2024 SCC OnLine SC 561 every criminal trial starts with general presumption and one of the cardinal principle of criminal jurisprudence is that, there is a presumption of innocence in favour of the accused, unless proven guilty. Burden of proving the case of the prosecution always rests on the shoulder of the prosecution. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence, which gathers stregnth before the appellate Court 8.2. It would be further apposite to refer the decision of the Hon'ble Apex Court in case of Jafarudheen v. State of Kerala , (2022) 8 SCC 440: "While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that ensures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters" 9 Considering the cardinal principles of Criminal jurisprudence, until and unless offence is proved by the prosecution against the accused persons beyond all reasonable doubt, the accused is innocent. It appears that prosecution has failed to produce or adduce any clinching and material evidence of sterling quality which can connect the accused person with the alleged offence. 9.1 In view of the above, the learned Sessions Judge has not committed any error in recording the acquittal and the prosecution has failed to prove the case against the accused person beyond all reasonable doubt under Sec.307 and 302 of the INDIAN PENAL CODE . 10 In view of the above and in backdrop of the evidence adduced / produced by the prosecution, material contradictions which goes to the root of the case of the prosecution are noticed by the learned Trial Court and as the prosecution failed to prove the case against the accused beyond all reasonable doubts, the learned Trial Court has not committed any error in acquitting the accused. 11 Accordingly, present appeal fails and is hereby dismissed. The judgement and order of acquittal passed by the learned Additional Sessions Judge, Fast Track Court, Dhrangadhra in Sessions Case No.15 of 2000, stands confirmed. Bail bonds, if any, stands discharged. Record and proceedings be sent back to the concerned Trial Court forthwith.