Gujarat High Court
State Of Gujarat vs Dilavarsinh @ Dolubha Bhikhubha Rathod on 31 January, 2024
NEUTRAL CITATION
R/CR.MA/565/2024 ORDER DATED: 31/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 565 of
2024
In R/CRIMINAL APPEAL NO. 255 of 2024
With
R/CRIMINAL APPEAL NO. 255 of 2024
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STATE OF GUJARAT
Versus
DILAVARSINH @ DOLUBHA BHIKHUBHA RATHOD
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Appearance:
MS MONALI BHATT APP for the Applicant(s) No. 1
for the Respondent(s) No. 1,2,3,4,5,6,7
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 31/01/2024
ORAL ORDER
ORDER IN CRIMINAL MISC. APPLICATION:
1. This is an application filed by the applicant - original
complainant under Section 378(4) of the Code of Criminal
Procedure, 1973, seeking leave of this Court to present an
appeal against the judgment and order of acquittal, passed by
the learned 2nd Additional Sessions Judge, Bhavnagar dated
20.03.2023 in Sessions Case No.44 of 2017.
2. Learned A.P.P. submits that though the prosecution has
proved the case beyond the reasonable doubt against the
respondents - accused by producing the dying declaration
below Exh.102 and examining the learned Executive
NEUTRAL CITATION
R/CR.MA/565/2024 ORDER DATED: 31/01/2024
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Magistrate below Exh.100, the said evidence was discarded by
the learned trial Court only on the ground that the dying
declaration does not contain the certificate issued by the
Medical Officer with regard to the conscious state of mind. The
learned A.P.P. has produced the copy of the dying declaration
wherein, it transpires that the certificate is issued by the
medical officer before the dying declaration was started and at
the end also, there are signatures of the deceased and the
learned Executive Magistrate and, therefore, it is submitted
that there was no ground for discarding the same evidence
and acquitting the respondents - accused. The learned A.P.P.
further relies on the evidence below Exh.105 i.e. witness
Ishwarbhai Jethabhai Nandva who recorded the statement of
the deceased, which was produced below Exh.106 wherein
also, the deceased had narrated the incident and given the
names of the accused persons. The learned A.P.P. submits that
without any cogent reason, the judgment and order of the
acquittal was passed by the learned trial Court on giving much
weightage to the minor discrepancies. The learned A.P.P. also
relies on the suicide note which was produced below Exh.80
during the inquest panchnama. The said evidence was also
discarded by the learned trial Court while acquitting the
NEUTRAL CITATION
R/CR.MA/565/2024 ORDER DATED: 31/01/2024
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respondents - accused.
3. Considering the avernments made in the application and
submissions made by the learned advocates appearing for the
respective parties, this Court finds that there is some arguable
case in favour of the applicant, therefore, leave, as prayed for,
is granted. This application is allowed.
ORDER IN CRIMINAL APPEAL:
1. The appeal is admitted. Learned APP waives service of
notice of admission on behalf of respondent - State.
2. Issue bailable warrant in the sum of Rs.5,000/- (Rupees
Five Thousand only) against each respondents - original
accused.
3. Record and proceedings be called for from the concerned
court. Registry is directed to list the Criminal Appeal in
seriatim.
(M. K. THAKKER,J)
Hitesh
