Gujarat High Court
State Of Gujarat vs Dhansingbhai Saliyabhai Harijan on 23 June, 2025
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
R/CR.A/610/2001 JUDGMENT DATED: 23/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 610 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
DHANSINGBHAI SALIYABHAI HARIJAN & ANR.
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Appearance:
MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1,2
MR. YOGENDRA THAKORE(3975) for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI
DESAI
Date : 23/06/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
1. The present appeal under Section 378 of the Code of Criminal Procedure, 1973 is directed against the judgment and order of acquittal passed by the Court of learned Sessions Judge, Panchmahals at Dahod Camp in Sessions Case Page 1 of 12 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Jul 17 2025 Downloaded on : Fri Jul 18 21:41:47 IST 2025 NEUTRAL CITATION R/CR.A/610/2001 JUDGMENT DATED: 23/06/2025 undefined No.149/2000 dated 20.03.2001 for offence punishable under Sections 307, 498A read with Section 114 of the Indian Penal Code, 1860.
2. Briefly stated, the case of prosecution is that the present respondent - accused No.1 Dhansing Saliyabhai is the husband of the prosecutrix - Lilaben. The respondent No.1 herein - original accused No.1 was in illicit relationship with the respondent No.2 - Shanudiben to which, the prosecutrix had objected. Resultantly, the accused was mentally and physically torturing the prosecutrix. On 27.03.2000, at 20:00 hours in the night, the accused with an intention to commit his wife's murder, sprinkled kerosene on her, lighted a match-stick and set her on fire because of which, she received serious burn injuries.
2.1 A complaint came to be registered by the prosecutrix before the I/c PSI, Limdi Police Station on 28.03.2000. The investigation was carried out and chargesheet was submitted in the court of Ld. Judicial Magistrate, Jalod. As the case was triable by Sessions Court, the same was committed to the Sessions Court, Dahod.
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NEUTRAL CITATION R/CR.A/610/2001 JUDGMENT DATED: 23/06/2025 undefined 2.2 The Prosecution has produced the following documentary and oral evidence.
Documentary Evidences Mark-5/1 Original complaint of Prosecutrix - Lilaben Exh-10 Mark-5/2 Panchnama of the place of offense Exh-21 Mark-5/3 Certificate of Medical Officer, Dahod issued Exh-07 regarding treatment of Prosecutrix- Lilaben Mark-5/4 Dispatch Note of forwarding the muddamal to FSL Exh-17 Mark-5/5 Certificate of Authority Exh-18 Mark-5/6 Acknowledgment receipt of muddamal received in Exh-19 FSL
-: Oral Evidence :-
Witness No.1 Dr. Babulal Badriprasad Mittal - Medical Officer Exh-06 Witness No.2 Lilaben Dhansingbhai - Prosecutrix and victim Exh-09 Witness No.3 Bhanuben Ravibhai - witness and daughter of Exh-11 the victim Witness No.4 Prahladbhai Dhansingbhai - son of the victim - Exh-12 witness Witness No.5 Madiben Sadiyabhai - witness Exh-13 Witness No.6 Madansinh Dulesinh Puvar - Investigating Exh-16 Officer Witness No.7 Kalubhai Hamsing Bilwal - Panch witness Exh-20 Witness No.8 Prabhatsinh Himmatsinh Bariya - Head Exh-22 Constable Witness No.9 Shantilal Kalabhai Garasiya - Investigating Exh-23 Officer 2.3 At the end of trial, further statements of the accused under Section 313 of the Code of Criminal Procedure, 1973 were recorded in which, the respondents - accused pleaded not guilty and stated that, they had been falsely implicated in Page 3 of 12 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Jul 17 2025 Downloaded on : Fri Jul 18 21:41:47 IST 2025 NEUTRAL CITATION R/CR.A/610/2001 JUDGMENT DATED: 23/06/2025 undefined the offence. Considering the arguments of both the sides, the learned Additional Sessions Judge, Panchmahals at Dahod Camp, vide judgment and order dated 20.03.2001 acquitted the respondents - accused for the charges levelled under Sections 307, 498A and 114 of the Indian Penal Code. The aforesaid has given rise to the filing of the present appeal by the prosecution.
3. Heard Ms. Jirga Jhaveri, learned Additional Public Prosecutor appearing for the appellant and Mr. Yogendra Thakore, learned advocate appearing for the respondents -
accused.
4. Ms. Jirga Jhaveri, learned APP appearing for the appellant
- State relied on the grounds raised in the appeal and submitted that, the impugned judgment is required to be interfered with and quashed and set aside.
5. Mr. Yogendra Thakore, learned advocate appearing for the respondents - accused submitted that, the impugned judgment requires no interference mainly, relying on the principle of law laid down by the Court from time to time that, once the view taken by the competent Court is a plausible Page 4 of 12 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Jul 17 2025 Downloaded on : Fri Jul 18 21:41:47 IST 2025 NEUTRAL CITATION R/CR.A/610/2001 JUDGMENT DATED: 23/06/2025 undefined view, this Court should not interfere; and secondly that, the case is that of no evidence wherein, the prosecution witnesses have not supported the case of prosecution except, the prosecutrix - Lilaben. It is submitted that, in absence of any evidence on record, no interference is called for in the impugned judgment rendered by the competent Court.
6. Having heard the learned advocates appearing for the respective parties, having considered the evidence on record thread bare and the impugned judgment passed by the competent Court, the following emerge:
6.1 The accused No.1 - Dhansing Saliyabhai is the husband of the prosecutrix - Lilaben, a Harijan villager of Mouje:Limdi.
He is allegedly in relationship with the accused No.2 - Shanudiben @ Shantaben. The prosecutrix - Lilaben, who is wife of Dhansing Saliyabhai - accused No.1, used to stop him from time to time, resultantly, she was tortured mentally and physically abused by the accused No.1. Harboring grudge against her, with an intention to kill her, the accused sprinkled kerosene on her body, lit match-stick and set her ablaze. The prosecutrix - Lilaben was seriously injured and if the prosecutrix - Lilaben would have died, it would have amounted Page 5 of 12 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Jul 17 2025 Downloaded on : Fri Jul 18 21:41:47 IST 2025 NEUTRAL CITATION R/CR.A/610/2001 JUDGMENT DATED: 23/06/2025 undefined to her murder and by the aforesaid act, by aiding each other, the accused had allegedly committed offence under Sections 307, 498A and 114 of the Indian Penal code. 6.2 On perusal of evidence, it emerges that the PW-1 - Dr. Babulal Mittal, whose deposition is at Exh.6, has accepted in his deposition that the injury could have been either homicidal or it could have been suicidal in nature. The said certificate dated 04.09.2000 is produced at Exh.7.
6.3 It emerges that, the incident occurred on 27.03.2000 at 8:00 pm at night and the complaint came to be registered on 28.03.2000 at 12:45 hours below Exh.10. Despite the presence of prosecutrix's son, daughter and the residents of faliya at the scene of incident, none of these witnesses reported the matter or filed complaint with the police until noon on the following day. There is no explanation either from the prosecution or the prosecutrix for the delay. On 04.09.2000, the prosecutrix - Lilaben was referred to S.S. Hospital for plastic surgery. 6.4 Considering the evidence on record, it emerges that there is no evidence that, the prosecutrix was tortured by the accused. Though the residents of Falia had gathered, they Page 6 of 12 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Jul 17 2025 Downloaded on : Fri Jul 18 21:41:47 IST 2025 NEUTRAL CITATION R/CR.A/610/2001 JUDGMENT DATED: 23/06/2025 undefined were not examined as independent witnesses. 6.5 The prosecution had examined prosecutrix - Lilaben below Exh.9, whose evidence was not supported either by her daughter - Bhanuben who had deposed below Exh.11 or her son Prahalad who had deposed below Exh.12 or Maliben below Exh.13 who is the mother-in-law, who were all declared as hostile. No other witnesses were examined by the prosecution. There is no dispute to the fact that, the prosecutrix - Lilaben had suffered burns, which was established beyond doubt. From perusal of the record, it emerges that, there is contradiction in the complaint filed by Lilaben and her deposition. 6.6 The learned competent Court in para 13 of its judgment had rightly observed that, there is no clarity with respect to the occurrence of the actual incident. On one hand, Lilaben - PW-2 deposes below Exh.9 that, at about 8:00 O'clock in the night, her husband - Dhansing bhai came to house asking her to serve him food however, the same was refused by Lilaben stating that, the amount received out of the labour work by Dhansing bhai was not given to the prosecutrix and that, the accused no.1 was in illicit relationship with Shanudiben - accused No.2. That, both of them came into the house and set Page 7 of 12 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Jul 17 2025 Downloaded on : Fri Jul 18 21:41:47 IST 2025 NEUTRAL CITATION R/CR.A/610/2001 JUDGMENT DATED: 23/06/2025 undefined prosecutrix - Lilaben ablaze.
6.6.1 In the complaint, the aforesaid is not stated by the prosecutrix. The aforesaid is also recorded by the competent Court at internal page 18 of the impugned judgment and the competent Court had rightly arrived at a finding of fact that, there is no clarity with respect to the actual incident. 6.7 The panch witness - Kalubhai Hamsing Bilval, who is examined below Exh.21, had not supported the case of prosecution. Madansinh Dulesing Puvar who is examined below Exh.16 and Shantilal Kalabhai Garasiya who is examined below Exh.23, do not lend any credence to the case of the prosecution. It is established from Exhs.17, 18 and 19 that, the muddamal which comprised of samples of earth containing kerosene, control earth and prosecutrix - Lilaben's clothes which were all seized from the place of offence, were dispatched to FSL to primarily ascertain the presence or oudour of kerosene however, no such FSL report is placed on record. While it is not in dispute that the prosecutrix was injured by burns, in our opinion, even considering the case of the prosecution as it is with respect to the presence of kerosene in the earth at the place of incident and clothes of Page 8 of 12 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Jul 17 2025 Downloaded on : Fri Jul 18 21:41:47 IST 2025 NEUTRAL CITATION R/CR.A/610/2001 JUDGMENT DATED: 23/06/2025 undefined the prosecutrix- Lilaben, the prosecution has failed to prove the charges levelled against the accused beyond reasonable doubt so as to hold the accused guilty under Sections 307, 498A and 114 of the Indian Penal Code.
7. While examining a case under Section 307 of the Indian Penal Code, the Court is required to see whether the act, irrespective of result was done with an intention or knowledge and circumstances mentioned in the said section. The intention or knowledge of accused must be such as necessary to constitute a murder. Without such ingredient being established, there can be no offence of attempt to murder. 7.1 For an offence to be committed under Section 498A of the Indian Penal Code, it is required to establish that the husband or relative of husband subjects a woman to cruelty. 7.2 Section 114 of the Indian Penal Code, it is necessary to first make out the circumstances which constitute abetment so that, if absent, the accused would have been liable to be punished as an abetter and then to show that, he was also present when the offence was committed. The abetment must have been complete apart from the presence of the abetter. Page 9 of 12 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Jul 17 2025 Downloaded on : Fri Jul 18 21:41:47 IST 2025
NEUTRAL CITATION R/CR.A/610/2001 JUDGMENT DATED: 23/06/2025 undefined
8. In the facts of the present case, on perusal of evidence on record and deposition of the witnesses, no interference is called for in the impugned judgment rendered by the competent Court.
9. At this stage, it is apposite to refer to the decision rendered in case of Bhupatbhai Bachubhai Chavda and Anr. Vs. State of Gujarat reported in [2024] 4 S.C.R. 322. Relevant paragraphs of the judgment read as under:
"6. It is true that while deciding an appeal against acquittal, the Appellate Court has to re-appreciate the evidence. After re-appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on evidence on record. Perusal of the impugned judgment of the High Court shows that this question has not been adverted to. Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well-settled principle that an order of acquittal further strengthens the presumption of innocence of the 326 [2024] 4 S.C.R. Digital Supreme Court Reports accused. After having perused the judgment, we find that the High Court has not addressed itself on the main question.
7. The second error the High Court committed is found in paragraph 23 of the impugned judgment. The High Court has gone to the extent of recording a finding that the appellants have failed to adduce evidence in their support, failed to examine the defence witness and failed to establish falsity of the prosecution's version. This concept of the burden of proof is entirely wrong. Unless, under the relevant penal statute, there is a negative burden put on the accused or there is a reverse onus clause, the accused is not required to discharge any burden. In a case where there is a statutory presumption, after the prosecution discharges initial burden, the burden of rebuttal may shift on the accused. In the absence of the statutory provisions as above, in this case, the burden was on the prosecution to prove the guilt of the accused beyond a reasonable doubt. Therefore, the High Court's finding on the burden of proof is completely Page 10 of 12 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Jul 17 2025 Downloaded on : Fri Jul 18 21:41:47 IST 2025 NEUTRAL CITATION R/CR.A/610/2001 JUDGMENT DATED: 23/06/2025 undefined erroneous. It is contrary to the law of the land. ...
11. Therefore, the appeal must succeed. We set aside the judgment and order dated 14th December 2018 of the High Court and set aside the conviction of the appellants. The judgment and order dated 5th July 1997 of the Trial Court is restored. The appeal is, accordingly, allowed. The bail bonds of the appellant no.2 are cancelled. The appellant no.1 shall be forthwith set at liberty unless he is required to be detained in connection with any other case."
10. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the appellate Court ought not to substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. In the instant case, the learned APP for the applicant has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
11. It is to be observed that while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal ought not to be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court Page 11 of 12 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Jul 17 2025 Downloaded on : Fri Jul 18 21:41:47 IST 2025 NEUTRAL CITATION R/CR.A/610/2001 JUDGMENT DATED: 23/06/2025 undefined should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.
12. In light of the position of law, as referred above, and in the facts of the present case, no case is made out to interfere with the impugned judgment and order of acquittal dated 20.03.2001 passed by the Court of learned Sessions Judge, Panchmahals at Dahod Camp in Sessions Case No.149/2000.
13. Accordingly, the present appeal is dismissed. Record and Proceedings, if any called for, to be sent back to the concerned Trial Court forthwith.
(VAIBHAVI D. NANAVATI,J) (UTKARSH THAKORBHAI DESAI, J) NEHA Page 12 of 12 Uploaded by NEHA PRAJAPATI(HC01404) on Thu Jul 17 2025 Downloaded on : Fri Jul 18 21:41:47 IST 2025