Gujarat High Court
Amratben Ramanbhai Solanki vs State Of Gujarat on 13 January, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/2181/2022 JUDGMENT DATED: 13/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 2181 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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Approved for Reporting Yes No
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AMRATBEN RAMANBHAI SOLANKI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
A B PATEL(7467) for the Appellant(s) No. 1
ADVOCATE NOTICE SERVED for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2,3,4,5
MR L. B. DABHI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 13/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. This appeal is preferred by the original complainant under section 372 of the Code of Criminal Procedure, challenging judgment and order dated 29.08.2022 passed by the Principal District and Sessions Judge, Kheda at Nadiad in Sessions Case No.59 of 2021.
2. By the impugned judgment and order the Principal District Judge has recorded acquittal of the respondent- accused from the offences under sections 436, 504, 506(2) and Page 1 of 10 Uploaded by MEHUL B. TUVAR(HC00628) on Sat Jan 18 2025 Downloaded on : Mon Jan 20 21:17:03 IST 2025 NEUTRAL CITATION R/CR.A/2181/2022 JUDGMENT DATED: 13/01/2025 undefined 114 of the Indian Penal Code. The incident appears to have been occurred on account of quarrel, which ensued because of court case, which was pending upon the dispute of right of way between the families of appellant and respondent-accused. In connection with the incident, an FIR being C.R. No.11204041200036 of 2020 came to be registered by the complainant- appellant, wherein it is alleged that the incident taken place at 19.30 hrs. on 24.01.2020, because of on going dispute regarding right of way, where the respondent- accused came to the residence of the appellant and started using abusive language and threatened the family members of the appellant. As a result of which, the appellant and the family members escaped from the place and thereafter, the respondent accused lite haystack for fodder stored at terrace and set at fire.
3. On due investigation, charge-sheet came to be filed for the offences under sections 436, 504, 506(2) and 114 of the Indian Penal Code and by and upon compliance with the provisions of Section 207 of the Code of Criminal Procedure, the case was committed to the Sessions Court, Kheda at Nadiad.
4. Learned advocate for the appellant submitted that though there was sufficient evidence available with the Trial Court in the form of depositions of eye-witnesses about arrival of the respondent-accused at the residence of the appellant Page 2 of 10 Uploaded by MEHUL B. TUVAR(HC00628) on Sat Jan 18 2025 Downloaded on : Mon Jan 20 21:17:03 IST 2025 NEUTRAL CITATION R/CR.A/2181/2022 JUDGMENT DATED: 13/01/2025 undefined consisting verbal threats and thereafter, immediately setting ablaze haystack bundles on the terrace. According to the appellant, the deposition of eye-witness was sufficient to establish the charge against the respondent, erroneously the Sessions Court has recorded the acquittal.
5. It is submitted that the Trial Court has committed an error in acquitting the respondents on the ground that during the course of investigation samples of haystack of rice were sent to the FSL, which did not show the presence of any hydrocarbon and therefore, circumstantial evidence did not corroborate with the depositions and the same witnesses. It is submitted that when eye-witness has given his count of setting the haystack on fire, the Sessions Court was not required to go into the corroborative evidence of presence of any hydrocarbon.
6. The Court has taken into consideration the submissions made by the learned advocate for the appellant and has also considered the order sheet, wherein on 22.09.2023, this Court had issued notice upon the respondents, and thereafter, consistently, learned advocate for the appellant has remained present. Thus, recorded particularly in orders dated 20.07.2023, 23.07.2024 and thereafter, by order dated 13.08.2024, the Court had called for the record and proceedings.
7. The Court has perused the record and proceedings. The Court finds that during the course of trial, the trial Court Page 3 of 10 Uploaded by MEHUL B. TUVAR(HC00628) on Sat Jan 18 2025 Downloaded on : Mon Jan 20 21:17:03 IST 2025 NEUTRAL CITATION R/CR.A/2181/2022 JUDGMENT DATED: 13/01/2025 undefined has examined the 10 witnesses and 10 documents having been exhibited as under:
List of prosecution witnesses examined by the Court:
Witness Exh. Name of Witness
No. No.
1 12 Amratben Ramanbhai Solanki
2 14 Naynakumari Mohansinhji Rajput
3 16 Dashrathbhai Kanubhai Bhoi
4 18 Vishnubhai Ramanbhai Patel
5 20 Salimmiya Kalumiya Malek
6 22 Dineshbhai Chhotalal Barot
7 23 Arjunbhai Gandabhai Parmar
8 25 Udabhai Kulabhai Jadav
9 29 Rameshchandra Aatmaram Vaghela
10 31 Rameshchandra Bhemsinh Dhabhi
List of evidence examined by the Court:
Sr. Exh. Particulars of Evidence
No. No.
1 13 Complaint
2 15 Report of FSL Investigation.
3 17 Panchnama of the place of incident.
4 21 Inquest panchnama of accused.
5 24 Panchnama of place, where haystack for
fodder were brunt.
6 30 Copy of station diary.
7 32 Outward entry of muddamal
8 33 Receipt of FSL regarding receipt of
muddamal.
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NEUTRAL CITATION
R/CR.A/2181/2022 JUDGMENT DATED: 13/01/2025
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9 35 Letter of FSL.
10 36 Report of FSL.
8. Vide Exh.6, charge came to be framed against the four accused-respondents alleging that on 24.10.2020 at 19:30 hrs., at village Raska, at the residence of the appellant-
complainant, there was a dispute of right of way of the accused persons from the residence side of the appellant and in this connection a court case was pending and keeping grudge with regards to the dispute, the accused persons arrived at the residence of the appellant armed with sticks and hurling verbal abuses. They went on to the terrace of the house and set a fire the haystack, which was fodder for the cattle, thereby causing damage to the appellant. The cause of fire was fluid substance and thereby charge for the offence under sections 436, 504, 506(2) and 114 of the Indian Penal Code came to be framed.
9. Vide Exh.7 further statement under Section 313 of the Code of Criminal Procedure was recorded of all the accuses persons, where they have denied each and every allegations made against them and have claimed that they were innocent and on account of some enmity, a false case is foisted upon them.
10. PW-1 is the complainant, who is examined vide Exh.12, wherein she has exhibited the FIR at Exh.30 and has deposed in her chief that the incident of fire setting Page 5 of 10 Uploaded by MEHUL B. TUVAR(HC00628) on Sat Jan 18 2025 Downloaded on : Mon Jan 20 21:17:03 IST 2025 NEUTRAL CITATION R/CR.A/2181/2022 JUDGMENT DATED: 13/01/2025 undefined around three years back and the bundle of haystack were set on fire by the accused persons. It is deposed that at the time while they were having their meals, the accused persons set the fire and therefore, they ran away from their house. According to this witness, the fire was being set by using a fluid substance which this witness saw was being used by the accused persons. She has deposed that because of fear, she had ran away from her house and it in this connection, she had registered the FIR. In the cross-examination, she has confirmed that when the altercation took place, she was having her meals and at the relevant time, Somabhai was residing in their lane and there was a Court case which was continuing with regard to the right of way. At the relevant time, on account of altercation, several people had got together and as the quarrel escalated, this witness alongwith Vinubhai left their house and went away.
11. PW-2-Naynakumari Mohansinjji Rajput, examined at Exh.14. She was summoned on telephone for drawing the panchnama of scene of offence. She has giver in her deposition the description about the area and construction where the incident had taken place. She has also deposed that from the scene of offense, half burned haystack were taken as samples to be sent to FSL.
12. PW-3-Dashrathbhai Kanubhai Bhoi was examined at Exh.16. He is a witness for panchnama for seizure of Page 6 of 10 Uploaded by MEHUL B. TUVAR(HC00628) on Sat Jan 18 2025 Downloaded on : Mon Jan 20 21:17:03 IST 2025 NEUTRAL CITATION R/CR.A/2181/2022 JUDGMENT DATED: 13/01/2025 undefined various articles from the place of offense however, this witness was declared hostile and the panchnama at Exh.16 was given exhibit number for the purpose of signatures.
13. Similarly, PW-4 -Vishnubhai Ramanbhai Patel, the co-
panch of PW-3 was also declared hostile.
14. PW-5-Salimmiya Kalumiya Malek is the panch witness of the panchnama of seizure of sticks from the respondents- accused however, this witness is also declared hostile and therefore, qua him, the panchnama for seizure of weapon was given exhibit No.20 only for the purpose of signature of this witness. Similarly, co-panch-Dineshbhai Chhotalal Barot was examined vide Exh.22, who was also declared hostile.
15. As the panch witnesses were of scene of offense and seizure of articles form the scene of offense as well as seizure of alleged weapons were declared hostile, the Court has taken into consideration the evidence of the Investigating Officer, who is examined as PW-10- Rameshchandra Bhemsinh Dabhi at Exh.31. In his deposition also, the witness in the evidence in chief has narrated the chronology of action taken by him, but the Court finds that in the deposition of this witness, the contents of the panchnama being Exh.20 and 16 have not been narrated by this witness and therefore, in the opinion of the Court, the contents of panchnama not have been Page 7 of 10 Uploaded by MEHUL B. TUVAR(HC00628) on Sat Jan 18 2025 Downloaded on : Mon Jan 20 21:17:03 IST 2025 NEUTRAL CITATION R/CR.A/2181/2022 JUDGMENT DATED: 13/01/2025 undefined proved, cannot be accepted as evidence on record.
16. These are the evidences, which would corroborate the version of the eye-witness. However, these corroborative pieces of evidences are not proved by the prosecution and hence, the same cannot be considered as supporting the case of the eye-witnesses. The Court has taken into consideration the version of the eye-witnesses also. It is coming out that on account of existing dispute of right of way, PW-1 was the vitally interested witness. Not only that even as per the evidence of this witness relied upon by the prosecution, several other persons has gathered when the altercation took place, however, the prosecution has not examined the single witness which can be treated as an independent witness for substantive evidence.
17. The other witness for corroborating the version of the witnesses, is the FSL report relied upon by the prosecution which is exhibited vide Exh.36 which contains the report of muddamal articles seized from the scene of offense, particularly, parcel is given mark-C which contained half burned portion of hay and ashes. Similarly, mark-D was the sample of half burned ashes from the bundle of haystack and the result of the FSL is that no traces of Petroleum Hydrocarbon was found in the sample at mark- C and mark-D. Therefore the version given by the prosecution witness No.1 about the setting of a fire by the respondents-accused by use of fluid substance or chemical Page 8 of 10 Uploaded by MEHUL B. TUVAR(HC00628) on Sat Jan 18 2025 Downloaded on : Mon Jan 20 21:17:03 IST 2025 NEUTRAL CITATION R/CR.A/2181/2022 JUDGMENT DATED: 13/01/2025 undefined is also not corroborated.
18. The Court having found PW-1-original complainant whose version does not clearly assign any role to any of the respondents-accused and in absence of the prosecution producing any independent witnesses though it is a case of the prosecution itself that other witnesses were available and lastly non-corroborating of the scientific evidence would make the evidence of this eye-witness vulnerable and therefore, the Court does not deem it fit to rely upon the evidence of such witness as sufficient for convicting the accused persons.
19. The Court may also draw strength from the decision of the Apex Court in case of Rajesh Prasad Vs. State of Bihar & Anr. reported in (2022) 3 SCC 471, wherein the Apex Court has examined the case law with regard to the power of the High Court to overturned the decision of the Sessions Court where an another view is possible. Examining the case including that of Chandrappa & Ors. vs. State of Karnataka reported in (2007) 4 SCC 415, the Apex Court has culled out the general principles regarding the powers of the Appellate Court while dealing with the appeal against the order of acquittal. The Apex Court has held that the appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, the appellate court has to keep in mind that in case of an Page 9 of 10 Uploaded by MEHUL B. TUVAR(HC00628) on Sat Jan 18 2025 Downloaded on : Mon Jan 20 21:17:03 IST 2025 NEUTRAL CITATION R/CR.A/2181/2022 JUDGMENT DATED: 13/01/2025 undefined acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence, and thereafter, upon securing of acquittal, the presumption is further reinforced, reaffirmed and strengthened, and therefore, whenever there are two reasonable conclusions are possible on the basis of the evidence on record, ordinarily, the Apex Court would not disturb the findings of acquittal recorded by the Trial court.
19.(a) Considering the reasons assigned by the Sessions Court in the impugned judgment so also the reasoning assigned herein, there is no reason to interfere with the decision of the Sessions Court.
20. In the result, the appeal fails and is dismissed. The judgment and order of acquittal dated 29.08.2022 passed in Sessions Case No.59 of 2021 by the Principal District and Sessions Judge, Kheda at Nadiad stands confirmed. Bail and bail-bonds of the accused, if any, stand discharged. Records and proceedings be sent back to the concerned trial Court.
(A.Y. KOGJE, J) (SAMIR J. DAVE,J) MEHUL B. TUVAR/ SIDDHARTH Page 10 of 10 Uploaded by MEHUL B. TUVAR(HC00628) on Sat Jan 18 2025 Downloaded on : Mon Jan 20 21:17:03 IST 2025