Gujarat High Court
State Of Gujarat vs Rajesh Rasikbhai Rathod on 3 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1696 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
- No
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STATE OF GUJARAT
Versus
RAJESH RASIKBHAI RATHOD & ORS.
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Appearance:
MR UTKARSH SHARMA APP for the Appellant
MR PRAVIN GONDALIYA(1974) for the Respondent(s) No. 1,3,4
UNSERVED EXPIRED (N) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 03/04/2025
ORAL JUDGMENT
1. Present appeal is filed by the appellant - State of Gujarat
under Section 378(1)(3) of the Criminal Procedure Code, 1973
against the impugned judgment and order dated 03.11.2007
passed by the Preceding Officer, 3rd Fast Track Court, Gondal,
Camp at Upleta (hereinafter be referred to as "the trial Court") in
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Sessions Case No. 102 of 2006 whereby the trial Court has
acquitted the accused for the offences punishable under Sections
498A, 306 r/w. Section 114 of the Indian Penal Code whereby the
trial Court has acquitted the accused for the alleged offence.
2. Brief facts of the present case, in nutshell, are as under:-
2.1 It is alleged in the complaint that Vijuben daughter of
complainant was married with accused No.1 prior to thirteen
months and residing in joint family. That after the marriage,
Vijuben went her parental home only for 3 - 4 times and she
stayed there on Satam and Aatham and she complained her
parents that her marriage life was not going smoothly as accused
were taunting her doubting her character and tortured her by
saying that her parent had not given dowry as per their wish. It is
alleged that the complainant explained her and sent back to her
matrimonial home and thereafter, when the complainant was at
his farm, he received a phone call from Upleta and came to know
that his daughter Vijuben has committed suicide by pouring
kerosene and put herself on fire. Thereafter, the complainant
immediately went to Upleta in a car and in between one
Razaaqbhai met him on cross road, he informed that dead body
of the deceased was sent to the Government Hospital for
postmortem. It is also alleged that the complainant went to the
hospital and other family members went to the house of the
accused and when the complainant reached at the Hospital, he
has seen that the dead body of the deceased was lying in auto
rickshaw in burn condition as doctor was not available. That on
examination by the doctor, he found one cloth in the mouth of
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the dead body and thereafter the doctor has referred the dead
body to the Rajkot Medical College where the postmortem was
completed. Thereafter, on 05.01.2005, the complainant made an
application to the Superintendent of Police, Rajkot against the
accused.
2.2 On the basis of the said complaint, the Investigating Officer
has recorded statements of the witnesses and collected
necessary evidence against the accused.
2.3 After completion of investigation, as the sufficient evidence
was found, the police has filed the charge-sheet against all the
accused before the Court of learned Judicial Magistrate, First
Class. As the offence was triable by the Court of Sessions, the
concerned Court has committed the case under Section 209 of
the Criminal Procedure Code to the Court of Sessions wherein it
has been registered as Sessions Case No. 102 of 2006.
2.4 The charge against the accused came to be framed by the
trial Court on 22.11.2006 for the aforesaid offences against the
accused and explained it to them, the accused denied having
committed any offence. The accused pleaded not guilty to the
charge and pleaded for trial and hence, the case was tried by
the trial Court.
2.5 To prove the case, the prosecution has examined the the
following witnesses:-
Sr.No. Oral Evidence Exhibit
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2.6 In addition to this, the prosecution has also produced the
following documentary evidence:-
Sr.No. Documentary Evidence Exhibit
4 Letter wrote by the doctor of Kotej Hospital 33
Upleta
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10 Letter written for noting in the station diary 44
with regard to arrest of Mukesh Rasikbhai and 45
Rajesh Rasikbhai and Vajiben
12 Receipt with regard to receiving muddamal by 48
FSL
13 Receipt with regard to receiving viscera by FSL 49
17 Order of investigation by Police Inspector 55
20 Yadi written to police informing the cause of 58
death
21 Letter written by Upleta Medical Officer that 59
can give a hundred percent opinion
24 Outgoing letter written to Medical Police to do 62
postmortem
2.7 After closure of the evidence, further statement of the
accused under Section 313 of the Criminal Procedure Code, 1973
has been recorded. After hearing both sides and considering the
evidence on records, the trial Court by impugned judgment and
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order has acquitted the accused from all the charges levelled
against them.
3. Being aggrieved by and dissatisfied with the aforesaid
judgment and order of acquittal the appellant - State of Gujarat
has preferred this Appeal.
4. Heard Mr.Utkarsh Sharma, learned Additional Public
Prosecutor for the appellant - State of Gujarat and Mr.Pravin
Gondaliya, learned counsel appearing for the respondent/s -
accused at length.
5. Mr.Sharma, learned Additional Public Prosecutor for the
appellant - State of Gujarat, while referring to the entire oral as
well as documentary evidence, has assailed the impugned
judgment and order and has submitted that the trial Court has
not taken into consideration the evidence connecting the
accused to the alleged offence in its proper perspective. He has
submitted that the trial Court ought to have believed that the
prosecution has been able to prove the charges levelled against
the accused. While referring to the evidence of the witnesses and
the material collected against the accused, learned Additional
Public Prosecutor has submitted that the prosecution has
established the case against the accused by examining the
witnesses who have supported the case of the prosecution,
however, the trial Court has discarded and disbelieved the
evidence of the witnesses and failed to appreciate the statutory
presumption.
5.1 Mr.Sharma, learned Additional Public Prosecutor has
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submitted that the deceased was aged about only 22 years
carrying five months pregnancy and within 13 months of her
marriage died in suspicion circumstances. He has submitted that
not a single lady, who carries pregnancy, can take such ultimate
step to commit suicide by pouring kerosene herself and,
therefore, the allegation with regard to ill-treatment and
harassment caused to the deceased required to be kept in mind
by the learned Judge, while deciding the case of the prosecution,
however, the trial Court has not considered the said aspect. He
has submitted that the trial Court has not considered the
evidence of the complainant and other relevant witnesses. He
has submitted that P.W.8 Dr. Hitesh Laljibhai Kalariya, who
examined the deceased in burn condition, has opined that the
deceased died because of the severe burnt injury and the dead
body was brought at Government Hospital at Upleta in suspicion
condition and, therefore, he referred the deceased to the Rajkot
requesting the Superintendent to perform the postmortem in
panel and the postmortem was carried out by the panel doctors.
He has submitted that P.W.11 Dr. Jitendra Samatbhai Rathod,
examined at Exhibit 36, has specifically stated that the deceased
died due to the burn injury and under such circumstances, the
trial Court has, while passing the impugned judgment and order
of acquittal, committed an error in not considering the evidence
of the said two doctors and even the evidence of P.W.6 and P.W.7
i.e. father and mother of the deceased.
5.2 According to his submission, the trial Court ought to
have convicted the accused and ought to have imposed
necessary sentence. He has prayed to allow the present appeal
and to quash and set aside the impugned judgment and order of
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acquittal.
6. Mr.Gondaliya, learned counsel appearing for the
respondents - accused has submitted that accused No.2
Rasikbhai Jadavbhai Rathod i.e. father-in-law of the deceased
was passed away on 12.02.2009 and the notice issued by this
Court could not be served upon respondent No.2 as endorsed
by the concerned bailiff and produced the death certificate at the
relevant point of time. So, the present appeal qua accused No.2
stands abated and it is disposed of accordingly.
6.1 He has submitted that the trial Court, while passing the
impugned judgment and order of acquittal in favour of the
accused, has not committed any error nor any infirmity or
perversity found. He has submitted that the FIR came to be filed
by the father of the deceased after five months from the date of
incident with distorted facts and cooed up story and, therefore,
the trial Court has rightly discarded and disbelieved the evidence
of the P.W.6. He has submitted that the incident took place on
22.10.2004 and immediately thereafter the concerned police
officers of the Upleta Police Station reached to the hospital and
recorded the statements of all concern including the mother of
the deceased and they have not shown any suspicion or raised
any doubt with regard to the death of the deceased. He has
submitted that Mr.Bansal, Deputy Superintendent of Police has
personally examined and verified the statements of the
witnesses, but none of the witnesses have alleged any ill-
treatment or harassment or cruelty meted out to the deceased.
He has submitted that after almost five months, the complainant
registered the FIR on 07.03.2005 and raised suspicion that his
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daughter i.e. deceased was killed by the accused or on account
of harassment and mental and physical torture, the deceased
committed suicide. He has submitted that even the complainant
approached the higher authorities of the State and raised his
grievance that the application given by him was not registered
as an FIR and, therefore, ultimately, on 07.03.2005 the
application given by the complainant was registered as an FIR
and prior thereto the concerned Investigating Officer has
recorded the statements of all the independent witnesses and
nearby residence of the deceased and relatives of the deceased
and despite of that the offence under Section 306 r/w. Section
498A of the IPC was not made out, however, the prosecution has
neither disclosed all these facts nor produced the statements
before the trial Court nor supplied to the accused. Mr.Gondaliya,
learned counsel has submitted that the deceased died
accidentally or in any other circumstances, but not as alleged by
the complainant in the FIR. He has submitted that no
interference is required to be called for in the present appeal and
the appeal being devoid of merit deserves to be dismissed. In
support of his submissions, Mr.Gondaliya, learned counsel has
relied upon the decision this Court in the case of State of
Gujarat Vs. Bharatbhai Balubhai Lad and others reported in
2006 (1) GLR 514.
7. This Court has perused the judgment and order of
acquittal rendered by the trial Court and carefully considered the
rival contentions, evidence and material placed on record.
8. On perusal of the evidence of P.W.6 - Mohanbhai
Lakhabhai Parmar, complainant it appears that this witness has
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stated that prior to about 13 months, the deceased married with
accused No.1 and after her marriage, as and when the deceased
visited his home she used to complain that there were mental
and physical torture, harassment and cruelty on the part of the
accused and doubt about her character. It reveals from the
record that the statement of P.W. 7 - Parvatiben w/o. Mohanbhai
Parmar (mother of the deceased) has been recorded by the P.W.
14 Shankarbhai Ranchhodbhai Patel, Investigating Officer in
presence of Surjibhai Chanabhai Baranda, Deputy
Superintendent of Police (P.W.15). In the cross-examination,
P.W.14 has specifically stated that it is true that except the
investigation of accidental death, he has not done any other
investigation in this offense. He had the charge of the
investigation for only one day on 22.10.2004. During that
investigation, he recorded the statement of Parvatiben - wife of
complainant Mohanbhai. The statement was recorded as dictated
by her and it was also read over to her. He recorded the
statement of Parvatiben at Upleta Hospital. He has also stated
that it is true that he recorded the statement of Parvatiben on
22.10.2004 and she has dictated in the statement given before
me that "her daughter was not being harassed or tortured in her
family by her mother-in-law, father-in-law, jeth - jethani or any
other person. When her daughter Viju came for a visit during last
Satam-Aatham festival, she stayed for 15 days and at that time
also she did not tell me anything about harassment or torture as
well as any quarrel or dispute; however, she said that they were
going to stay in a separate house. P.W.14 has deposed that he
has investigated the case on 22.10.2004 and during that period,
he has recorded the statement of P.W. 7 Parvatiben at the
Government Hospital, Upleta.
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9. On perusal of the evidence of P.W. 6 Mohanbhai Parmar,
it appears that he has stated that it is true that he has dictated
before Baranda in his statement that when his daughter had
come to pay visit during last Satam-Aatham (janmashthami)
festival, she stayed for 15 days and on the day of Aatham, the
son-in-law came to take my daughter Viju back and he took her
back. He is denied the suggestion that he has dictated before
Baranda in his statement that even at that time also neither she
told him about harassment or torture nor she stated about any
quarrel or dispute in her family. It is true that he has dictated
before Baranda in his statement that as his daughter Viju was
pregnant, on the next day of new-moon day of last Shravan
month, his son, his wife and other family members came to
Upleta and performed baby-shower ceremony. It is true that he
has dictated before Baranda that 'baby-shower ceremony of Viju
was performed and stayed at Upleta for the entire day and came
back home in the evening after having meal.' It is true that he
has dictated before Baranda that during that time also his
daughter did not complain about any harassment or torture as
well as about any quarrel in the family. It is true that Nathabhai
Sheth resides in their village and he has cordial relations with
him. It is true that there was telephone connection at the house
of this Nathabhai Sheth during the period of incident. It is true
that phone call of his daughter Viju and her mother-in-law was
received on this telephone prior to two days of the incident and
my son Narottam talked over the telephone. It is true that at that
time his daughter asked his son Narottam about his well-being
and also told his son that she was fine and happy and she did not
talk about any harassment or torture during the conversation
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with his son.
10. On perusal of the evidence of P.W.12 Natvarsinh Jilubha
Chudasama, it appears that in his cross-examination, he has
stated that he did not remember as to on which date the crime
occurred. He has come to give deposition after reading the
record. It is true that investigation of this case had been
conducted before he registered the complaint. It is true that
before registering the crime, Dy.S.P Baranda and Mr. S. R. Patel
had conducted investigation. At the time concerned, Baranda
was his superior officer. It is true that he was aware before he
registered the complaint in this case that Baranda had conducted
investigation of the case. It is true that the prior to registering
the crime, Baranda had already recorded the statements of the
concerned witnesses, whose statements he recorded and also he
had recorded the statement of complainant, which he had
recorded. It is true that Baranda had recorded the statements
before one and half to two months prior to registering the
complaint. It is true that before he registered the complaint, he
had received investigation of an application submitted by
complainant Mohanbhai to D.S.P. on 06.01.2005. It is true that
after the receipt of this application till the complaint was lodged
by the complainant, he had not recorded the statements of
anyone in connection to the said application. It is true that he
had not done any verification of that application. It is true that
when he registered the complaint, he considered the statements
which were recorded by Baranda earlier. It is true that on the
basis of those statements, no offense constituted under section
498-A and 306. It is true that he had perused and considered the
statement of Parvatiben Mohanbhai which was recorded earlier
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by Patel prior to registering the complaint. It is true that no
offense under section 498-A and 306 constituted on the basis of
this statement also. It is true that Baranda and Patel recorded the
statements in the present case on 22.10.2004. It is true that he
registered the complaint of Mohanbhai in the present case on
7.3.2005. He recorded the statements of close relatives of the
deceased in this case. It is true that before he recorded the
statements of these close witnesses, Baranda and Patel had
already recorded their statements. It is not true that on the basis
of the statements of the witnesses, whose statements were
recorded by Baranda and Patel, it did not appear to him that the
close family members were dictating false facts in the statement
give before him. It is not true that he has colluded with the
Prosecution and the accused persons have been falsely
implicated in serious crime under section -306. It is not true that
he has written down the statements of the maternal side
relatives of complainant party on his own and that he did not
inquire to any of the witnesses with intention to corroborate the
complaint and the complainant. It is not true that he has not
recorded the statement of any witness after inquiring to
concerned witness. He did not feel that it was not necessary to
record the statements of the persons residing adjacent to the
deceased. He did not remember as to whether Baranda and Patel
had recorded the statements of the persons residing nearby the
accused persons. He has stated that he did not know as to
whether any muddamal was handed over to him after the
complaint was registered. It is true that after the crime was
registered, if any muddamal has been seized in connection with
the incident and if it is under the custody of Writer Head
Constable, then he had to make demand with written report that
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he required those muddamal in the case of investigation. He did
not remember whether he gave written note to Writer Head
Constable to get custody of such muddamal.
11. Now considering the evidence of the aforesaid
witnesses, it appears that the story put-forward by the
complainant before P.W.14 is completely cooked up. On perusal
of the evidence of P.W.1 to P.W.5, it appears that these witnesses
are the panch witnesses, who have not supported the case of the
prosecution. On perusal of the evidence of P.W.6 and P.W.7 i.e.
father and mother of the deceased, it appears that the omission,
exaggeration and contradiction were proved through the
evidence of the Investigation Officer and it is completely washed
out the case of the prosecution. Therefore, the story put forward
by the prosecution was rightly disbelieved by the trial Court and
after examining oral as well as documentary evidence and going
through the evidence of the witnesses, the trial Court has right
passed the impugned judgment and order of acquittal.
Considering the overall facts and circumstances of the case and
perusing the impugned judgment and order of the trial Court, it
transpires that the trial Court has not committed any error of
facts and law in passing the impugned judgment and order of
acquittal.
12. It is well settled by catena of decisions that the an
Appellate Court has full power to review, re-appreciate and
reconsider the evidence upon which the order of acquittal is
founded. However, Appellate Court must bear in mind that in
case of acquittal there is double presumption in favour of the
accused. Firstly, the presumption of innocence is available to him
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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.
13. Further, 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.
Further, while exercising the powers in appeal against the order
of acquittal, the Court of appeal would not ordinarily interfere
with the order of acquittal unless the approach of the lower Court
is vitiated by some manifest illegality and the conclusion arrived
at would not be arrived at by any reasonable person and,
therefore, the decision is to be characterized as perverse. Merely
because two views are possible, the Court of appeal would not
take the view which would upset the judgment delivered by the
Court below. However, the Appellate Court has a power to review
the evidence if it is of the view that the conclusion arrived at by
the Court below is perverse and the Court has committed a
manifest error of law and ignored the material evidence on
record. A duty is cast upon the Appellate Court, in such
circumstances, to re-appreciate the evidence to arrive to a just
decision on the basis of material placed on record to find out
whether the accused are connected with the commission of the
crime with which he is charged.
14. The scope and principles are enunciated by the Hon'ble
Apex Court in case of Chandrappa and others Vs. State of
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Karnataka reported in (2007) 4 SCC 415, more particularly
paragraph Nos. 42 and 43, which was subsequently re-
affirmed by the Hon'ble Apex Court Rajesh Prasad Vs. State
of Bihar and another, reported in [2022] 3 SCC 471, wherein,
the Hon'ble Apex Court has enunciated the general principles in
case of acquittal, more particularly in paragraph No. 26 the
general principles are set out by the Hon'ble Apex Court based
upon various decisions of the Hon'ble Apex Court. Then in case
of Babu Sahebagouda Rudragoudar Vs. State of
Karnataka, reported in AIR 2024 SC 2252 = (2024) 8 SCC
149, the Hon'ble Apex Court has dealt with the similar issue,
more particularly, in paragraph Nos. 37 to 40. Hence, I am in
complete agreement with the findings recorded by the trial
Court.
15. It is also worthwhile to refer to the recent decision of the
Hon'ble Supreme Court in the case of Ramesh vs. State of
Karnataka, reported in [2024] 9 SCC 169, wherein the
Hon'ble Supreme Court has held and observed in paras-20 and
21 as under:-
"20. At this stage, it would be relevant to refer to the
general principles culled out by this Court in Chandrappa
and others vs. State of Karnataka , regarding the power of
the appellate Court while dealing with an appeal against a
judgment of acquittal. The principles read thus:
"42. .... (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
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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 is
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.
21. In Rajendra Prasad v. State of Bihar, a three-Judge
Bench of this Court pointed out that it would be essential
for the High Court, in an appeal against acquittal, to clearly
indicate firm and weighty grounds from the record for
discarding the reasons of the Trial Court in order to be able
to reach a contrary conclusion of guilt of the accused. It
was further observed that, in an appeal against acquittal, it
would not be legally sufficient for the High Court to take a
contrary view about the credibility of witnesses and it is
absolutely imperative that the High Court convincingly
finds it well-nigh impossible for the Trial Court to reject
their testimony. This was identified as the quintessence of
the jurisprudential aspect of criminal justice. Viewed in this
light, the brusque approach of the High Court in dealing
with the appeal, resulting in the conviction of Appellant
Nos. 1 and 2, reversing the cogent and well-considered
judgment of acquittal by the Trial Court giving them the
benefit of doubt, cannot be sustained."
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16. Considering the entire evidence on record, it clearly
appears that there is no credible evidence to connect the present
accused with the alleged crime and the evidence on record is not
so convincing to prove beyond reasonable doubt that the
accused has committed the alleged crime. Therefore, the
accused cannot be convicted on the evidence on record.
17. On perusal of the impugned judgment and order, it clearly
transpires that the trial Court has not committed any error of fact
and law in appreciating the evidence on record and in acquitting
the accused from the charges levelled against them. Even on
reappreciation of the evidence, it clearly transpires that the
prosecution has miserably failed to prove the charge levelled
against the accused beyond reasonable doubt. Therefore, the
impugned judgment and order of the trial Court is sustainable
and the present appeal is liable to be dismissed.
18. In view of the above, the present appeal is devoid of
merits and it deserves to be dismissed. Resultantly, it is
dismissed. The impugned judgment and order of acquittal passed
by the trial Court is hereby confirmed. Bail bond stands
cancelled. Record and proceedings be sent back to the
concerned Trial Court forthwith.
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
