State Of Gujarat vs Rakeshbhai Dhanjibhai Yadav
2022 Latest Caselaw 496 Guj

     R/CR.MA/6604/2021                                ORDER DATED: 17/01/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 6604 of 2021

                    In R/CRIMINAL APPEAL NO. 504 of 2021

                                       With
                         R/CRIMINAL APPEAL NO. 504 of 2021
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                               STATE OF GUJARAT
                                     Versus
                          RAKESHBHAI DHANJIBHAI YADAV
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Appearance:
MS CM SHAH, APP (2) for the Applicant(s) No. 1
RULE NOT RECD BACK(63) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE S.H.VORA
       and
       HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                  Date : 17/01/2022

                              ORAL ORDER

(PER : HONOURABLE MR. JUSTICE S.H.VORA)

1. Feeling aggrieved and dissatisfied with the judgment and order dated 11.03.2020 passed by the learned Principal District Judge, Bhavnagar in Sessions Case No.20 of 2019 for the offences under sections 302, 323, 324, 326, 504, 114 of IPC and also u/s 135 of the G.P. Act, the applicant - State of Gujarat has preferred this application to grant leave to appeal as provided under section 378(1)(3) of the Code of Criminal Procedure, 1973 ("the Code" for short), whereby, learned Trial Court acquitted private respondents from the aforesaid offence.

2. Briefly stated, it is the case of the prosecution that on 18.10.2018 at about 3.00 at noon, while the complainant Ms. Jenuben wife of Satarbhai Shah and her husband were at home, elder brother of her husband Sulemanbhai came and informed

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that complainant's son Mr. Sabbir had quarrel and he is sitting at pan galla of Shakilbhai. On hearing this message, the complainant along with her son Samir and neighbour Iqbalbhai had gone at pan galla and saw that her son was sitting in bleeding condition and blood was flowing from his head. On inquiry, her son told that while he was passing from back side of Railway Popat colony, accused Rakesh and Bhavinbhai both asked why he was passing through this way and thereby gave filthy abuses and when accused were told not to give filthy abuses, both the accused got enraged and accused Rakesh inflicted pipe blow on head whereas accused Bhavin inflicted knife blow on neck. Thereafter, one Husenbhai called 108 Van and thereafter, the complainant's son was taken to government hospital were treatment was given. Thereafter, the complainant lodged the FIR being C.R.No.I-193 of 2018 for the aforesaid offences and thus, investigation machinery was put into motion.

3. Pursuant to the aforesaid complaint, concerned Police Station registered offence against two accused viz. Bhavin Chauhan and Rakesh Yadav. During course of investigation, investigating agency recorded statement of witnesses and collected relevant material in the form of medical and FSL report. After having found sufficient material against both the accused, charge-sheet came to be filed in the Court of learned CJM, Bhavnagar. As the said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Bhavnagar as provided under section 209 of the Code.

4. Upon committal of the case to the Sessions Court, Bhavnagar, learned Sessions Judge framed charge at Exh.9 and 10 against both the accused for the aforesaid offence. Both the accused persons pleaded not guilty and claimed to be tried

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5. In order to bring home charge, the prosecution has examined in all 13 witnesses and also produced various documentary evidence before the learned trial Court. The details of the said witnesses and documentary evidence are as under :-

Sr.No. Name                                             Exh.


3         Panch Muradhusen Abdulgaffurbhai Sama         18

5         Panch Baldevbhai Purshotambhai Bhatia         22




10        Police witness Rupalben Balabhai Seta         31





Documentary evidence.


Sr.No. Name                                             Exh.









10        Panchanama of collection of sample from       25






       R/CR.MA/6604/2021                                   ORDER DATED: 17/01/2022



           body of deceased.


13         Yadi with regard to visit of place of incident       33




18         Yadi to recovery blood sample and clothes.           41

6. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the both the accused so as to obtain their explanation/answer as provided u/s 313 of the Code. In the further statement, both the accused denied all incriminating circumstances appearing against them as false and further stated that they are innocent and false case has been filed against them. After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned Principal District Judge acquitted both the accused of the offences, for which they were tried, as the prosecution failed to prove the case beyond reasonable doubt.

R/CR.MA/6604/2021 ORDER DATED: 17/01/2022

7. It needs to be noted here that the State has filed application to leave to appeal qua accused no.2 - Shri Rakeshbhai Yadav only and it has chosen not to file appeal against acquittal order qua accused - Shri Bhavin Chauhan.

8. We have heard learned APP Ms. Shah appearing for the applicant State and have minutely examined the oral and documentary evidence adduced before the learned Trial Court. It appears that entire prosecution case rests on oral dying declaration made by deceased - Sabbir before his mother - complainant - Ms. Jenuben Shah and other three witnesses who were examined as prosecution witness no.6 to 9 at Exh.26, 28, 29 and 30 respectively. It is settled principle of law that law does not insist on corroboration to dying declaration before that can be accepted and acted upon. No doubt insistence of corroboration to dying declaration is rule of prudence and therefore, when the Court is satisfied that declaration is not product of imagination of declarant than there is no impediment in convicting the accused on the basis of such dying declaration. Dying declaration can therefore, form sole basis for conviction when it inspires full confidence in the mind of the Court. Bearing in mind proposition of law as settled in catena of decisions, the Court is required to scrutinize evidence of the complainant before whom deceased Sabir made declaration with regard to incident. At the same time, it appears that out of four witnesses before whom oral declaration is made, three of them have not supported the prosecution case who were examined as PW- 7 to

9. In other words, only dying declaration now remains to examined which is declared by deceased Sabir before the complainant - Jenuben PW-6 examined at Exh.26. The complainant in her complaint attributed role to both the accused

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and as per statement in the complaint, deceased Sabir informed her that accused Rakesh gave pipe blow on head whereas accused Bhavin gave knife blow on his neck. While tendering evidence before the Court, the complainant in terms disclosed in her examination in chief that deceased had informed her that when he was passing through Railway Popat colony, at that time, accused Rakesh inflicted injury of iron pipe and she did not mention any role of accused Bhavin in examination in chief. Not only that in cross examination, the complainant accepted that she did not mention name of accused Bhavin even before investigating officer.

9. In this factual background of the case, when the evidence is re-assessed and re-examined thoroughly, we have notice that post mortem on the dead body was performed after two and half days of incident and it is a matter of fact that though deceased survived for two days and was taken to the hospital immediately, no any medical evidence with regard to his condition is brought on record. So before placing reliance on oral dying declaration made before the complainant, it is necessary that there should be medical evidence suggesting that deceased was in fit state of mind to make oral dying declaration and oral dying declaration by itself is weak piece of evidence. Four prosecution witnesses deposed before the Court that deceased Sabir made dying declaration before them and gave different version with regard to oral statement made by the deceased. Medical evidence disclose that it is not possible to opine as to deceased succumbed to injury on account of injury caused by pipe and knife. So in absence of medical evidence suggesting that deceased was in fit medical condition to make dying declaration and weapons do not co-relate with injuries noticed in P.M. report, it becomes duty of

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the prosecution to prove that dying declaration is reliable, voluntary and truthful and further the maker thereof must be in fit mental condition to make it.

10. The learned Trial Court felt it unsafe to rely on dying declaration made before the complainant and therefore, we do not think that the learned Trial Court was not justified in taking that view. So in our view, perfect probable view has been taken by the learned Trial Court which cannot be set aside for mere fact that other view can be taken on the basis of dying declaration. The inconsistent version of complainant in the complaint and her deposition makes dying declaration doubtful and not trustworthy in absence of corroborative evidence and therefore, learned Trial Court rightly thought it fit not to rely upon so called dying declaration. Learned Trial Judge has also noticed other inconsistency in prosecution case viz. with regard to weapon used in the crime, place of incident, identity of accused namely Rakesh as there are many persons in the area having name 'Rakesh and such other aspects of the case. Under the circumstances, the learned trial Judge has rightly acquitted the respondents accused for the elaborate reasons stated in the impugned judgment and we also endorse the view/finding of the learned trial Judge leading to the acquittal.

11. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the appellate Court cannot 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. (Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225). In the instant case, the learned APP has not been able to point out to

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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.

12. In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280, Supreme Court has held as under:

"The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."

13. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot 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 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.

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14. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.

15. In view of the above and for the reasons stated above, present application for leave to appeal fails and same deserves to be dismissed and is accordingly dismissed. In view of dismissal of the application for leave to appeal, captioned Criminal Appeal also deserves to be dismissed and is accordingly dismissed.

(S.H.VORA, J)

(SANDEEP N. BHATT,J) SATISH