Gujarat High Court
State Of Gujarat vs Rakeshbhai Dulabhai Baraiya on 24 April, 2025
NEUTRAL CITATION
R/CR.A/988/2011 JUDGMENT DATED: 24/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 988 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting Yes No
No
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STATE OF GUJARAT
Versus
RAKESHBHAI DULABHAI BARAIYA & ORS.
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Appearance:
MS.JIRGA JHAVERI, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No.
1,2,3,4
MR RAJESH R DEWAL(1024) for the Opponent(s)/Respondent(s) No. 1,3
MR RAXIT J DHOLAKIA(3709) for the Opponent(s)/Respondent(s) No. 2,4
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 24/04/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant- State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgement and order of acquittal passed by learned Sessions Judge, Bhavnagar (hereinafter referred to as "the learned Trial Court") in Sessions Case No. 189 of 2005 on 22.11.2007, whereby, the learned Trial Court has acquitted the respondents for the offence punishable Page 1 of 21 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:34:49 IST 2025 NEUTRAL CITATION R/CR.A/988/2011 JUDGMENT DATED: 24/04/2025 undefined under Sections 452, 306, 504, 506(2) and 114 of the Indian Penal Code, 1860 and Section 135 of the Bombay Police Act.
1.1 The respondents are hereinafter referred to as "the accused"
as they stood in the original case for the sake of convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case are as under:
2.1] On 30.05.2005, the complainant, Ashwinbhai Balabhai Solanki and his younger brother Ravi were at home and his parents and elder brother Raju and younger sister Poonam had gone out. At around 12.30 hours, the accused came armed with a stick, which was in the hands of the accused No. 1 and came into their house and asked them where their brother Raju was. The accused threatened them and told them to vacate the house and go away or they would kill them and as the complainant Ashwinbhai Balabhai Solanki saw them he took a can of kerosene which was lying in his house and sprinkled it on his body and set himself ablaze with a matchbox, which was in his house. As he started burning and shouting, all the four accused ran away and his neighbour Kanabhai Govindbhai came and put a jute sack on him and Page 2 of 21 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:34:49 IST 2025 NEUTRAL CITATION R/CR.A/988/2011 JUDGMENT DATED: 24/04/2025 undefined put out the fire. That he jumped into the water tank which was at his house and he was grvievously burnt on his chest, stomach, back and his hands and thereafter his brother Ravi and neighbor Kanabhai Govindbhai put him in a rickshaw and brought him to the Government Hospital Bhavnagar, where, he filed the complaint which was registered at Bhavnagar City "D" Division Police Station I-C.R.No. 93 of 2005 under Sections 452, 504, 506 (2) and 114 of the IPC and Section 135 of the Bombay Police Act. The complainant Ashwinbhai Balabhai Solanki expired during treatment and Section 306 was added in the FIR. 2.2] The Investigating Officer recorded the statements of the connected witnesses and collected the necessary documents and after completion of investigation the police filed the chargesheet against the accused before the Court of Chief Judicial Magistrate, Bhavnagar and as the said offences against the accused were exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Bhavnagar as per the provisions of Section 209 of the Code of Criminal Procedure and the case was registered Sessions Case No. 189 of 2007. 2.3] The accused were duly served with the summons and the accused appeared before the learned Trial Court, and it was verified whether the copies of all the police papers were provided to the accused Page 3 of 21 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:34:49 IST 2025 NEUTRAL CITATION R/CR.A/988/2011 JUDGMENT DATED: 24/04/2025 undefined as per the provisions of Section 207 of the Code. A charge at Exh. 7 was framed against the accused and the statements of the accused were recorded at Exhs. 8 and 11, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record.
2.4] The prosecution produced ten oral evidences and twenty two documentary evidences to bring home the charge against the accused and after the learned Additional Public Prosecutor filed the closing pursis, the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 were recorded, wherein, the accused denied all the evidence of the prosecution on record. The accused refused to step into the witness box or examine witnesses on their behalf and stated that a false case has been filed against them. After the arguments of the learned Additional Public Prosecutor and the learned advocate for the accused were heard, the learned trial Court by the impugned judgment and order was pleased to acquit all the accused from all the charges leveled against them.
3. Being aggrieved and dissatisfied with the said judgement and order of acquittal, the appellant - State has filed the present appeal mainly stating that the impugned judgement and order of acquittal passed Page 4 of 21 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:34:49 IST 2025 NEUTRAL CITATION R/CR.A/988/2011 JUDGMENT DATED: 24/04/2025 undefined by the learned Trial Court is contrary to law and evidence on record and the learned Trial Court has not appreciated the fact that all the witnesses have supported the case of the prosecution and during cross-examination, nothing adverse has been elicited in favour of the respondent. The case has been proved beyond reasonable doubts and the prosecution has successfully established the case against the respondent and the judgement and order of acquittal is unwarranted, illegal and without any basis in the eyes of law and the reasons stated while acquitting the respondent are improper, perverse and bad in law. Hence the impugned judgment and order passed by the learned Trial Court deserves to be quashed and set aside.
4. Heard learned APP Ms. Jirga Jhaveri for the appellant State and learned advocate Mr. Raxit J. Dholakiya for the respondents. Perused the impugned judgement and order of acquittal and have reappreciated the entire evidence of the prosecution on record of the case.
5. Learned APP Ms. Jirga Jhaveri has taken this Court through the entire evidence of the prosecution on record of the case and submitted that the judgment and order of acquittal is contrary to law and evidence on record and the learned trial Court has not appreciated the direct and indirect evidence in the case. That the complainant has supported the case Page 5 of 21 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:34:49 IST 2025 NEUTRAL CITATION R/CR.A/988/2011 JUDGMENT DATED: 24/04/2025 undefined of the prosecution, which is corroborated by the deposition of the medical officer and the witnesses have identified the accused before the learned trial Court. The prosecution has fully proved the case beyond reasonable doubts but the learned trial Court has relied on minor contradictions and has given undue weightage with regard to the place of incident. That the order passed by the learned trial Court is illegal, improper and perverse and is required to be quashed and set aside and the appeal of the appellant must be allowed.
6. Learned advocate Mr. Dholakiya appearing for the respondents-original accused submits that the judgments and orders have been passed after appreciation of all the evidence and the learned Court has appreciated the evidence in proper perspective and hence, the appeal of the appellant-State must be rejected.
7. At the outset, before discussing the facts of the present case, it would be appropriate to refer to the observations of the Apex Court 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 v. State of M.P., (2006) 10 SCC 313 : AIR 2006 SC 831, 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 Page 6 of 21 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:34:49 IST 2025 NEUTRAL CITATION R/CR.A/988/2011 JUDGMENT DATED: 24/04/2025 undefined 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". (emphasis supplied) 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..
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8. The law with regard to acquittal appeals is well crystallized and in acquittal appeals, there is presumption of innocence in favour of the accused and it has finally culminated when a case ends in an acquittal. The learned Trial Court has appreciated all the evidence and when the learned Trial Court has come to a conclusion that the prosecution has not proved the case beyond reasonable doubts, the presumption of innocence in favour of the accused gets strengthened. There is no inhibition to re appreciate the evidence by the Appellate Court but if after re appre- ciation, the view taken by the learned Trial Court was a possible view, there is no reason for the Appellate Court to interfere in the same.
9. As the appeal pertains to a case under Section 306 of the IPC, it would be appropriate to reproduce the observations of the Hon'ble Apex Court in the case of Mahendra Awase vs The State of Madhya Pradhesh Criminal Appeal No. 221/2025 (@ SLP(Cr) No. 11868/2023) passed on 17th January, 2025 which is as under:
11. Section 306 of the IPC reads as under:-
"306. Abetment of suicide. If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
12. Section 107 of the IPC reads as under:-
"107. Abetment of a thing.-A person abets the doing of a thing, who- First. - Instigates any person to do that thing; or Page 8 of 21 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:34:49 IST 2025 NEUTRAL CITATION R/CR.A/988/2011 JUDGMENT DATED: 24/04/2025 undefined Secondly. - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly. - Intentionally aids, by any act or illegal omission, the doing of that thing."
As is clear from the plain language of the Sections to attract the ingredient of Section 306, the accused should have abetted the commission of a suicide. A person abets the doing of a thing who Firstly - instigates any person to do that thing or Secondly - engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing or Thirdly - intentionally aids, by any act or illegal omission, the doing of that thing.
13. In Swamy Prahaladdas vs. State of M.P. and Another, [1995 Supp (3) SCC 438], the appellant remarked to the deceased that 'go and die' and the deceased thereafter, committed suicide. This Court held that:-
"3. ...Those words are casual nature which are often employed in the heat of the moment between quarreling people. Nothing serious is expected to follow thereafter. The said act does not reflect the requisite 'mens rea' on the assumption that these words would be carried out in all events. ..."
14. In Madan Mohan Singh vs. State of Gujarat and Another, (2010) 8 SCC 628, this Court held that in order to bring out an offence under Section 306 IPC specific abetment as contemplated by Section 107 IPC on the part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is required. It was further held that the intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for attracting Section 306.
15. In Amalendu Pal alias Jhantu vs. State of West Bengal, (2010) 1 SCC 707, this Court held as under:-
"12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the Page 9 of 21 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:34:49 IST 2025 NEUTRAL CITATION R/CR.A/988/2011 JUDGMENT DATED: 24/04/2025 undefined commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable. [Emphasis supplied]
16. In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC.
17. M. Mohan vs. State, (2011) 3 SCC 626 followed Ramesh Kumar vs. State of Chhattisgarh, (2001) 9 SCC 618, wherein it was held as under:-
41. This Court in SCC para 20 of Ramesh Kumar has examined different shades of the meaning of "instigation". Para 20 reads as under: (SCC p. 629) "20. Instigation is to goad, urge forward, provoke, incite or encourage to do 'an act'. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."
In the said case this Court came to the conclusion that there is no evidence and material available on record where-from an inference of the appellant accused having abetted commission of suicide by Seema (the appellant's wife therein) may necessarily be drawn." Thereafter, this Court in Mohan (supra) held:-
45. The intention of the legislature and the ratio of the cases decided by this Court are clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push Page 10 of 21 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:34:49 IST 2025 NEUTRAL CITATION R/CR.A/988/2011 JUDGMENT DATED: 24/04/2025 undefined the deceased into such a position that he/she committed suicide."
[Emphasis supplied]
10. In light of the above settled principles of law, the evidence on record of the case is appreciated and the prosecution has examined Prosecution Witness No.1 Keshubhai Gelabhai Solanki at Exh.12 and the witness was working as the City Mamlatdar, Bhavnagar on 30.05.2005 and he had recorded the dying declaration of Ashwinbhai Balabhai resident of Phulsar. The witness has stated that he had received the yadi for recording the dying declaration and he had recorded the dying declaration, which is produced at Exh.14.
During the cross examination by the learned advocate for the accused, the witness has stated that he has not mentioned the time, when he had received the yadi , in the yadi , which is produced at Exh.13 and he has not recorded at any place that he had left his office to register the dying declaration. He did not know Ashwinbhai Balabhai from earlier and he had gone to meet the doctor when he reached the hospital. Sir T Hospital is a huge hospital and in the yadi , it was not mentioned in what ward was Ashwinbhai admitted. The OPD and Burns Ward are different and he has not taken the certificate of the doctor who was posted in the Burns Ward. He did not inquire from the doctor about the time that the treatment was going on and in his presence the doctor did not measure Page 11 of 21 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:34:49 IST 2025 NEUTRAL CITATION R/CR.A/988/2011 JUDGMENT DATED: 24/04/2025 undefined the blood pressure or examine the patient with a stethoscope. The certificate at Ex.17 has to be filled up by the doctor but he has filled up the same and in the dying declaration, the bed number is not mentioned. There is no mention about the mental status of the person, whose dying declaration, was recorded and he did not ask any questions to verify about the consciousness of the person whose dying declaration he was recording. The doctor has not mentioned the time, when he had examined the patient and the dying declaration does not mention that the doctor was present while the dying declaration was being recorded. The victim did not state the father's name of accused Harshad Solanki and Rakesh Bariya and did not mention the area, in which, they were residing and both the names were incomplete names. He did not try to get the complete names and the name of Phulia is mentioned but he did not make make efforts to find out the full name of the person. In the police yadi , it was mentioned that Gavuben had brought him for treatment and in the dying declaration, he was stated that Kanabhai had brought him for treatment. There is a gap between the place where the dying declaration has concluded and the thumb impression and the hand of the victim was burnt but he had dipped the thumb on the stamp pad and had taken the thumb impression of the victim.
Page 12 of 21 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:34:49 IST 2025 NEUTRAL CITATION R/CR.A/988/2011 JUDGMENT DATED: 24/04/2025 undefined 10.1] The prosecution has examined Prosecution Witness No.2
Ramanbhai Kachrabhai Parmar at Exh.24 and the witness was working as a Scientific Officer in the Mobile Investigation van on 31-05-2005 when he had received a intimation from Bhavnagar "D" Division Police Station to check the place of incident. He had gone and examined the place and had filed the report which is produced at Exh.25. At the place of incident, there was the smell of kerosene and burnt and half-burnt pieces of cloth and there was an empty 5-litre jar of kerosene from which had the smell of kerosene. The report is produced at Exh 25.
During the cross-examination by the learned advocate for the accused, the witness has stated that, no matchbox was found at the place of incident and he did not inform the investigating officer to take sample of the water from the tank, which was in the house. That no jute sack was found at the place of incident and he did not verify whether there was any smell of kerosene in the tank.
10.2] The prosecution has examined Prosecution Witness No. 3 Ravibhai Balabhai Solanki and the witness is the younger brother of the deceased, who was present at the time of the incident. The witness has stated that as his brother was burning, he jumped the wall and ran away and when he returned, his neighbour Kanabai had put out the fire on his Page 13 of 21 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:34:49 IST 2025 NEUTRAL CITATION R/CR.A/988/2011 JUDGMENT DATED: 24/04/2025 undefined brother, and thereafter he and Kanabai brought his brother in a rickshaw to the hospital. They had taken him to the Bajrangdas Bapa hospital and during the cross-examination, the witness has stated that Kanabai was residing in front of his house and was his neighbour and he was presently in jail as he was convicted in a nurder case. That his brother Rajubhai was a externee and thirty to forty cases were recorded against him. That his neighbours had made representations against his brother before the Collector and his father was involved in a narcotics case. There are other residential houses near his house and the description of Don is not written in the complaint. The description of Phulia is also not written and there may be other persons by the name of Rakesh Bariya and Harshad Solanki. That he did not state as to who had given the threat to kill. 10.3] The prosecution has examined Prosecution Witness No. 4, Gauriben Balabhai Solanki at Exh.29 and the witness is the mother of the deceased, who has supported the case of the prosecution.
During the cross-examination by the learned advocate for the accused, the witness has admitted that a number of cases were filed against her son Raju including cases of assault, dacoity and prohibition and PASA proceedings were also filed against him. At present, her son Page 14 of 21 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:34:49 IST 2025 NEUTRAL CITATION R/CR.A/988/2011 JUDGMENT DATED: 24/04/2025 undefined Raju was at Vadodara as he was a externee and her son Ashwin was fully burnt.
10.4] The prosecution has examined Prosecution Witness No. 5 Rajeshbhai Balabhai Solanki at Exh.30 and the witness is the elder brother of the deceased, who has supported the case of the prosecution.
During the cross-examination by the learned advocate for the accused, the witness has admitted that many criminal cases are filed against him.
10.5] The prosecution has examined Prosecution Witness No. 6 Balabhai Laxmanbhai Solanki at Exh.31 and the witness is the father of the deceased, who has stated that on the date of the incident, he had gone to Jamnagar and was not present at home. The witness has not supported the case of the prosecution and has been declared hostile and has been cross-examined at length by the learned Additional Public Prosecution.
During the cross-examination by the learned advocate for the accused, the witness has admitted that his elder son Raju was twice a externee and PASA proceedings were also initiated against him. There were cases of theft, assault, liquor and dacoity and in all thirty to thirty five cases were filed against his son Raju. Prior to the demise of his son Ashwin, a case under the narcotics act was registered against him and Page 15 of 21 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:34:49 IST 2025 NEUTRAL CITATION R/CR.A/988/2011 JUDGMENT DATED: 24/04/2025 undefined there were also cases of assault against him but he was never arrested in any offence of theft or dacoity.
10.6] The prosecution has examined Prosecution Witness No.7, Dineshbhai Narendrabhai Sisodia at Exh.33 and the witness was working as a Medical Officer in the Sir T Hospital at Bhavnagar. The witness has stated that the post-mortem on the dead of Ashwinbhai Balabhai Solanki was done by him and the post-mortem note is produced at Exh.34. The witness has stated that as per the column No. 17, the chest and upper limbs were wrapped with hospital bandages and on removing the bandage burnt areas were seen. There were burns over the chest, dorsum and upper limbs and 35% to 40% deep burns were found. No visible fractures were found and the injuries in column No. 17 were antemortem. The cause of death was septicemic shock due to burns.
During the cross-examination by the learned advocate for the accused, the witness has stated that prior to the post-mortem, the deceased was given treatment and when a person sustains burn injuries, the water content of the body goes down and important organs of the body stop functioning as the organs receive less blood. Both the hands of the deceased from the tips of the fingers of both the hands till the shoulders including the thumbs were burnt.
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Jashubha Jamsi Chudasma at Exh.39 and the witness has stated that he was working as the PSO in Bhavnagar "D" Division Police Station when he had received information from the Medical Officer of Shri Bajrangdas Bapa Arogya Dham that Ashwinbhai Balabhai Solanki aged about 18 years had attempted suicide by sprinkling kerosene on his body and he was burnt. Janva Jog entry No. 174 of 2005 was registered and it was sent towards Head Constable Shri. N.N.Joshi for inquiry. P.S.I., Shri N.N.Joshi went to the Sir T Hospital and recorded the complaint of the victim and the complaint was registered.
10.8] The prosecution has examined Prosecution Witness No. 9, Nitinkumar Nargadashankar Joshi at Exh.45 and the witness was working as Head Constable at the Bhavnagar "D" Division Police Station and he has inquired into Janva Jog Entry No. 174 of 2005.
During the cross-examination by the learned advocate for the accused, the witness has stated that he did not know, who was Ashwinbhai Balabhai when he went to Sir T Hospital and he did not inquire about the Medical Officer, who was treating Ashwinbhai Balabhai. That he did not take the opinion of any Medical Officer about the mental status and consciousness of Ashwinbhai and the handwritings Page 17 of 21 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:34:49 IST 2025 NEUTRAL CITATION R/CR.A/988/2011 JUDGMENT DATED: 24/04/2025 undefined in the complaint produced at Exh.46 are of his writer constable. The thumb impression of the complainant is not identified in the complaint and no clarification about the person named Don was taken from Ashwinbhai and similarly, no clarification about the person named Fulyo was taken from the complainant. Moreover, there was no clarification about the area in which Harshad resides.
10.9] The prosecution has examined Prosecution Witness No. 10 Mohanbhai Ranabhai Bariya at Exh.48 and the witness is the Investigating Officer who has narrated in detail the procedure undertaken by him during investigation.
During the cross-examination by the learned advocate for the accused, the witness has stated that all the accused were released on anticipatory bail and he did not investigate as to whether the accused No. 3 Vipul was at Surat at the time of the incident. No Test Identification Parade was conducted during investigation and PASA proceedings were initiated three to four times against Rajubhai, the brother of the deceased. 11] On minute appreciation of the entire evidence of the prosecution, the incident has occurred on 30.05.2005 at the house of the complainant deceased and the deceased has thereafter expired on 02.06.2005. Immediately after the incident, the deceased was brought to Page 18 of 21 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:34:49 IST 2025 NEUTRAL CITATION R/CR.A/988/2011 JUDGMENT DATED: 24/04/2025 undefined Shri Bajrangdas Bapa Arogya Dham, Panwadi, Bhavnagar for treatment but no treatment papers have come on record during trial. The treating doctor has also not been examined by the prosecution and hence what was stated in the history by the victim has not come on record. As per the evidence of Prosecution Witness No. 7 Dineshbhai Narendrabhai, Sisodia, the Medical Officer who has conducted the post-mortem on the dead body of deceased Ashwinbhai Balabhai Solanki, the deceased was fully burnt and the entire hands from the tips of the fingers including the thumb till the shoulders were burnt. The postmortem note does not mention that any blue ink was found on the thumb of the deceased and in the dying declaration and the complaint, the thumb impression of the deceased Ashwinbhai Balabhai Solanki has not been identified by any person. The identity of the accused in the complaint or the dying declaration is not clear and there are no full names of persons, who had come to threaten the complainant given in the complaint or in the dying declaration. In the evidence of the Investigating Officer, Prosecution Witness No. 10 Mohanbhai Ranabhai Bariya, it has come on record that no Test Identification Parade was conducted and the sole eye-witness Prosecution Witness No. 3 Ravibhai Balabhai Solanki, who was present at the time of the incident along with the deceased categorically states that as soon as his brother started burning, he jumped to the wall and ran Page 19 of 21 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:34:49 IST 2025 NEUTRAL CITATION R/CR.A/988/2011 JUDGMENT DATED: 24/04/2025 undefined away and when he came back, his neighbour Kanabhai had doused his brother and he and Kanabhai had brought him to the hospital. It is pertinent to note that the prosecution has not examined witness Kanabai before the learned Trial Court and in the dying declaration, the deceased has stated that he was brought to the hospital by his brother and Kanabai but Prosecution Witness No. 4 Gauribhai Balabhai Solanki, the mother of the deceased has stated that she had brought her son to the hospital. There are a number of contradictions in the evidence of the witnesses and there is no iota of evidence that it was the accused had gone to the house of the deceased to threaten him.
12] In view of the settled position of law in the decisions of Mahendra Awase (supra), the learned trial Court has appreciated the entire evidence in proper perspective and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. The learned Trial Court has appreciated all the evidence and this Court is of the considered opinion that the learned Trial Court was completely justified in extending benefit of doubt and acquitting the accused of the charges leveled against him. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the learned trial Court and this Court is in complete Page 20 of 21 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:34:49 IST 2025 NEUTRAL CITATION R/CR.A/988/2011 JUDGMENT DATED: 24/04/2025 undefined agreement with the findings, ultimate conclusion and the resultant order of extending benefit of doubt and acquittal recorded by the learned Trial Court. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed.
13] The impugned judgement and order of acquittal passed by the learned Sessions Judge, Bhavnagar in Sessions Case No. 189 of 2005 on 22.11.2007, is hereby confirmed.
14] Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) VVM Page 21 of 21 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 25 2025 Downloaded on : Tue Apr 29 03:34:49 IST 2025