Gujarat High Court
State Of Gujarat vs Shaileshkumar @ Kalu Dhabalji Thakor on 22 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2612 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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STATE OF GUJARAT
Versus
SHAILESHKUMAR @ KALU DHABALJI THAKOR & ORS.
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
MRS REKHA H KAPADIA(2246) for the Opponent(s)/Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 22/04/2025
ORAL JUDGMENT
1. The appeal is filed by the appellant State under
Section 378(1)(3) of the Code of Criminal Procedure, 1973
against the judgement and order of acquittal passed by the
learned Additional Sessions Judge, Court No. 20,
Ahmedabad City (hereinafter referred to as "the learned
Trial Court") in Sessions Case No. 126/2008 on 31.03.2009,
whereby, the learned Trial Court has acquitted the
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respondent for the offence punishable under Sections 498A,
306 and 114 of IPC and Section 31 of Domestic Violence Act
(hereinafter referred to as "the Act" for short).
1.1 The respondents are hereinafter referred to as "the
accused" as they stood in the original case for the sake of
convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case
are as under:
2.1 The accused no. 1 was married to deceased Monikaben
and they had two children out of the wedlock, daughter
Daksha aged three years five months and daughter Divya
aged one and half years. The accused nos. 2 and 3 are the
mother-in-law and father-in-law respectively of deceased
Monikaben. The accused no. 1 and the deceased Monikaben
were married as per the rites of their community and
sometime after the marriage, the accused no. 1 would not
give enough money for household expenses to deceased -
Monikaben and would mentally and physically harass her.
The accused nos. 2 and 3 would also take the side of the
accused no. 1 and would mentally and physically harass
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deceased Monikaben and the harassment was to such an
extent that she got fed up of the harassment and on
17.03.2007 at about 14.45 hours, she sprinkled kerosene
on herself and set herself ablaze. She was immediately
rushed to the Shardaben Hospital for treatment where she
filed the complaint which is produced at Exh. 27 before the
Gomtipur Police Station which was registered at Gomtipur
Police Station I - C.R. No. 58 of 2007 under Sections 498(A)
and 114 of the IPC and Section 31 of the Protection of
Women from Domestic Violence Act. Monikaben - wife of
Shaileshkumar Dhawalji Thakur expired during treatment
and Section 306 was added in the FIR.
2.2 The Investigating Officer recorded the statements of
the connected witnesses and seized the necessary
documents and after completion of investigation, a charge-
sheet came to be filed before the learned Metropolitan
Magistrate, Ahmedabad and as the said offences against
the accused were exclusively triable by the Court of
Sessions, the case was committed to the Sessions Court,
Ahmedabad City as per the provisions of Section 209 of
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Code of Criminal Procedure and the case was registered as
Sessions Case No. 126/2008.
2.3 The accused was duly served with the summons and
the accused appeared before the learned Trial Court and it
was verified whether the copies of all the police papers were
provided to the accused as per the provisions of Section 207
of the Code. A charge at Exh. 2 was framed against the
accused and the statements of the accused were recorded at
Exhs. 3, 4 and 5 wherein, the accused denied the contents
of the charge and the entire evidence of the prosecution was
taken on record.
2.4 The prosecution produced the following evidence to
bring home the charge against the accused.
ORAL EVIDENCE
Sr. No. PW Name of the witness Exh.
Shaikh
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DOCUMENTARY EVIDENCE
Sr. No. Particulars Exh.
2.5 After the learned APP filed the closing pursis, the
further statement of the accused under Section 313 of the
Code of Criminal Procedure, 1973 were recorded, wherein,
the accused denied all the evidence of the prosecution on
record. The accused refused to step into the witness box or
examine witnesses on their behalf and stated that a false
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case has been filed against them. After the arguments of the
learned APP and the learned advocate for the accused were
heard, the learned Trial Court by the impugned judgement
and order was pleased to acquit all the accused from the
charges levelled against them.
3. Being aggrieved and dissatisfied with the said
judgment and order of acquittal, the appellant - State has
filed the present appeal mainly stating that the impugned
judgment and order of acquittal passed by the learned Trial
Court is contrary to law and evidence on record and the
learned Trial Court has not appreciated the fact that all the
witnesses have supported the case of the prosecution and
during the cross-examination, nothing adverse has been
elicited in favor of the respondents. The case has been
proved beyond reasonable doubt and the prosecution has
successfully established the case against the respondents
and the judgment and order of acquittal is unwarranted,
illegal, and without any basis in the eyes of the law and the
reasons stated while acquitting the respondent are
improper, perverse and bad in law. Hence the impugned
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judgment and order passed by the learned Trial Court
deserves to be quashed and set aside.
4. Heard learned APP Ms. Jirga Jhaveri for the appellant
State and learned advocate Mrs. Rekha Kapadia the
respondents. Perused the impugned judgement and order of
acquittal and have reappreciated the entire evidence of the
prosecution on record of the case.
5. Learned APP Ms. Jirga Jhaveri has taken this Court
through the entire evidence of the prosecution on record of
the case and submitted that the complainant has fully
supported the facts of his complaint. The impugned
judgement and order is perverse and learned APP has urged
this Court to quash and set aside the same and find the
respondent guilty for the offences.
6. At the outset, before discussing the facts of the
present case, it would be appropriate to refer to the
observations of the Apex Court regarding the scope of
interference in acquittal appeals in the case of Chandrappa
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& Ors. Vs. State of Karnataka reported in 2007 (4) SCC
415, wherein, the Apex Court has observed as under:
Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313, this
Court stated:
"While deciding an appeal against acquittal, the power of
the Appellate Court is no less than the power exercised
while hearing appeals against conviction. In both types of
appeals, the power exists to review the entire evidence.
However, one significant difference is that an order of
acquittal will not be interfered with, by an appellate court,
where the judgment of the trial court is based on evidence
and the view taken is reasonable and plausible. It will not
reverse the decision of the trial court merely because a
different view is possible. The appellate court will also bear
in mind that there is a presumption of innocence in favour
of the accused and the accused is entitled to get the benefit
of any doubt. Further if it decides to interfere, it should
assign reasons for differing with the decision of the trial
court".
From the above decisions, in our considered view, the
following general principles regarding powers of appellate
Court while dealing with an appeal against an order of
acquittal emerge;
(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
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limitation, restriction or condition on exercise of such
power and an appellate Court on the evidence before
it 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 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.
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7. The law with regard to acquittal appeals is well
crystallized and in acquittal appeals, there is presumption
of innocence in favour of the accused and it has finally
culminated when a case ends in an acquittal. The learned
Trial Court has appreciated all the evidence and when the
learned Trial Court has come to a conclusion that the
prosecution has not proved the case beyond reasonable
doubts, the presumption of innocence in favour of the
accused gets strengthened. There is no inhibition to re
appreciate the evidence by the Appellate Court but if after
re appreciation, the view taken by the learned Trial Court
was a possible view, there is no reason for the Appellate
Court to interfere in the same.
8. In light of the above settled principle of law, the
evidence of the prosecution is dissected and the
prosecution has examined PW1 - Kokilaben Prahladbhai
Thakor at Exh. 10. The witness is the mother of deceased
Monikaben who has stated that her daughter Monikaben
was residing in her matrimonial home with the accused and
she would visit her paternal home often. That the accused
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used to keep her well and whenever she would come home
she would not speak anything about her matrimonial home
That she does not know how her daughter expired but she
got news that her daughter was burnt and she had gone to
the hospital but her daughter Monika did not tell her
anything. The witness has not supported the case of the
prosecution and has been declared hostile and has and
during the lengthy cross examination by the learned APP
has denied that she had ever filed a complaint and she has
denied that her daughter was ill-treated and harassed by
the accused. During the cross examination by the learned
advocate for the accused the witness has stated that her
daughter was married for more than seven years and
during the entire time she had never filed any complaint or
complained about any mental and physical harassment by
the accused. The neighbors also did not complain about
any harassment to her daughter whenever she visited her
daughter at her matrimonial home and when she went to
the hospital her daughter was unconscious and could not
speak anything. That prior to this complaint her daughter
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had never filed any complaint in any Police Station against
the accused.
8.1 The prosecution has examined PW2 - Savitaben
Dalabhai Parmar Exh. 11 and the witness is the panch
witness of the inquest panchnama which is produced at
Exh. 12. The witness has fully supported the case of the
prosecution.
8.2 The prosecution has examined PW3 - Haribhai
Gordhanbhai Solanki Exh. 13 and the witness is the panch
witness of the panchnama of the place of offence which is
produced at Exh. 14. The witness has not supported the
case of the prosecution and has stated that in the year
2007 on 17.03.2007, he was called to the Police Station and
asked to affix his signature on some panchnama and he
had done so as per the say of the police. The witness has
been declared hostile and has been cross-examined at
length by the learned APP but nothing to support the case
of the prosecution has come on record.
8.3 The prosecution has examined PW4 - Kanuji Shakraji
Thakor at Exh. 16 and the witness is the paternal uncle of
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deceased Monikaben. The witness has stated that his niece
Monika was married about seven years prior to the incident
as per the rites of the community and she was residing with
the accused with her two children. The accused kept her
very well and she would come often to his home but he does
not know how she has expired. The witness has not
supported the case of the prosecution and has been
declared hostile and has been cross-examined by the
learned APP but nothing to support the case of the
prosecution has come on record. During the cross-
examination by the learned advocate for the accused the
witness has stated that the house of deceased Monika and
his house is adjacent to each other and during her
matrimonial life Monika used to come to her paternal home
and to his house also. During this entire time she has never
complained about any mental or physical harassment by
the accused and besides the complaint she has never filed
any complaint or application against the accused for any
mental or physical harassment. That he would go often to
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the matrimonial home of Monika and she was kept very
well at her matrimonial home.
8.4 The prosecution has examined PW5 - Sarojben Kanuji
Thakor at Exh. 17 and the witness is the aunt of deceased
Monikaben and she has not supported the case of the
prosecution. The witness has stated that her niece Monika
was kept very well at her matrimonial home and she does
not know how Monika has expired. The witness has been
declared hostile and has been cross-examined by the
learned APP and during the cross-examination by the
learned advocate for the accused the witness has stated
that during the seven years of matrimonial life of Monika,
she had never complained against the accused.
8.5 The prosecution has examined PW6 -
Jagdishwarkumar Sinh at Exh. 18 and the witness was the
Medical Officer at Shardaben Hospital on 17.03.2007. The
witness has stated that at around 03.40 pm, Monikaben
was brought for treatment and she had sustained 97%
burn injuries on her body, her clothes were burnt and
smelling of kerosene and her general condition was very
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poor. She had sustained 7% burn injuries on her face, 7%
burn injuries on the back portion of her body, 13% burn
injuries on the front portion of her body, 18% on both the
hands and 18% on both the legs. She had sustained 1%
burns on the genital area and in all had sustained 97%
burn injuries. She had given the history wherein she has
stated that she had sustained suicidal flame burns by
kerosene oil at her home in a closed room at 02.00 pm on
17.03.2007. The witness has produced the medical
certificate at Exh. 19. During the cross examination by the
learned advocate for the accused the witness has stated
that if the patient himself or herself gives the history, the
same is noted in the medical certificate. When the patient
was brought painkillers were given to her and her throat
was burnt and the outside portion of the neck was
completely burnt. She had sustained 3% burn injuries on
the soles of the foot and 97% on the whole body. That in a
case where a person has sustained burn injuries, the depth
of the burn injuries can be made out only after 48 hours.
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8.6 The prosecution has examined PW7 - Dr.
Mustakahmead Gulamrasool Shaikh at Exh. 20 and the
witness was working as the Medical Officer at Civil Hospital
Ahmedabad at the post-mortem room when the dead body
of deceased Monikaben Shaileshkumar Thakur was
brought for post-mortem. The witness has stated that he
and panel doctor Dr. M. J. Dave had conducted the post-
mortem on the dead body of Monikaben on 18.03.2007
between 01.00 pm and 02.00 pm. The post-mortem note is
produced at Exh. 21 and as per column no. 17, there were
second to third degree burns over the face forehead,
anterior and posterior part of neck, anterior and posterior
part of chest, both upper limbs with anterior and posterior
abdominal wall, labor majora, both buttocks and both lower
limbs with planter of feet. The skin was puffed at places of
burns and redness was seen at the places of burns, the
eyebrows, eyelashes and pubic hair was burnt and singed.
As per their opinion, the cause of death was shock due to
burns over the body. During the cross-examination by the
learned advocate for the accused the witness has stated
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that because of the 97% burns, the skin all over the body
was hanging and the both the hands and both the legs were
completely covered by bandages.
8.7 The prosecution has examined PW8 - Laxmanbhai
Keshavlal Parghi at Exh. 22 and the witness was working
as the Executive Magistrate, Ahmedabad City on
17.03.2007 when he had received a Yadi to record the dying
declaration of Monikaben Shaileshkumar from Gomtipur
Police Station at 07.20 hours. The witness has stated that
he had gone to Shardaben Hospital, Female Surgical Ward
and on inquiring from the doctor, he was informed that
Monikaben was admitted in the Female Surgical Ward and
he had gone to the ward and recorded the dying declaration
of Monikaben. That she had stated that her husband was
harassing her and was not giving her money for food in the
house and the father-in-law and mother-in-law were
harassing her and she was fed up and she herself had
sprinkled kerosene on her body and set herself ablaze. That
she had worn a terry cotton sari and blouse and she was
married for more than six years. The dying declaration is
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produced at Exh. 24. During the cross examination by the
learned advocate for the accused the witness has stated
that when he reached the hospital the police were present
and he met the police. When he had started to record the
dying declaration, he had not taken the endorsement of the
doctor that the patient was conscious. That he had taken
the endorsement of the doctor after he had recorded the
dying declaration and in column no. 8 of the dying
declaration, the column is blank and there are no details as
to whether the deceased had any fight with any person.
That the deceased did not state that she had a fight with
anyone till he had asked question no. 15.
8.8 The prosecution has examined PW9 - Jivaji Kavaji
Ninama at Exh. 26 and the witness was working as the PSI
in Gomtipur Police Station on 17.03.2007 when he had
received intimation from Shardaben Hospital and he had
gone to record the complaint of Monikaben which is
produced at Exh. 27. That he had sent the complainant for
registration to the PSO. During the cross examination by
the learned advocate for the accused the witness has stated
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that when he went to the hospital his writer was with him
and the treatment of the Monikaben was going on and she
had bandages all over her body. She had sustained burn
injuries and he did not take the doctor's endorsement that
the patient was conscious on the complaint. That he does
not know what was stated before the hospital and both the
hands of the deceased were covered with bandages. He did
not record the complaint in the presence of any witnesses
and while he was recording the complaint of the
complainant, his superior officers had come to the hospital.
8.9 The prosecution has examined PW10 - Vikramsinh
Ghaghubha Jadeja at Exh. 29 and the witness is the
Investigating Officer who has narrated the entire procedure
in detail that was undertaken by him during investigation.
During the cross examination by the learned advocate for
the accused the witness has stated that he had received the
matter for investigation at 07.30 pm but he did not record
the further statement of the complainant. That he had
recorded the statement of Poonamchand Kalidas Parmar -
the neighbor of the deceased and had also recorded the
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statements of Rakeshbhai Ramanbhai Gohil and
Praveenbhai Atmaram Parmar and both the witnesses had
stated that the deceased did not have any harassment from
the accused. The witnesses had gone to the hospital along
with the deceased and at the place of incident, a half burnt
quilt was found.
9. On reappreciation of the entire evidence of the
prosecution, there is no iota of evidence that the deceased
was ever harassed during the seven years of her
matrimonial life by the accused. PW1 - Kokilaben
Prahladbhai Thakur - the mother of the deceased, PW4 -
Kanuji Shakaraji Thakur - the uncle of the deceased and
PW5 - Sarojben Kanuji Thakur who were the nearest
relatives of the deceased have not stated that the deceased
was harassed by the accused in any manner. In fact, they
have stated that she was residing very happily in her
matrimonial home and during the entire period of seven
years of her matrimonial life she had never complained
about any ill treatment by the accused. The complaint
produced at Exh. 27 and the dying declaration produced at
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Exh. 24 have been recorded by PW9 - Jeevaji Kawaji
Ninama and PW8 - Laxmanbhai Keshavlal Pargi
respectively but there are a number of contradictions in
both the complaint and the dying declaration and the
endorsement of the Medical Officer that the patient was fit
and conscious to record her statement is not given by the
Medical Officer. In fact, the Executive Magistrate has stated
that Monikaben was not checked by the Medical Officer
before he had recorded the statement and in the evidence it
has emerged that both the hands of Monikaben were burnt
and had bandages all over the hands but still the dying
declaration and the complaint show that the thumb
impression of Monikaben was taken but the same has not
been identified by any independent persons. There is no
evidence regarding the ill treatment and the complaint has
not been proved beyond reasonable doubts and the learned
Trial Court has discussed all the evidence in detail.
10. In view of the settled position of law in the decisions of
Chandrappa (supra), the learned Trial Court has
appreciated the entire evidence in proper perspective and
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there does not appear to be any infirmity and illegality in
the impugned judgment and order of acquittal. The learned
Trial Court has appreciated all the evidence and this Court
is of the considered opinion that the learned Trial Court
was completely justified in acquitting the accused of the
charges leveled against them. The findings recorded by the
learned Trial Court are absolutely just and proper and no
illegality or infirmity has been committed by the learned
Trial Court and this Court is in complete agreement with
the findings, ultimate conclusion and the resultant order of
acquittal recorded by the learned Trial Court. This Court
finds no reason to interfere with the impugned judgment
and order and the present appeal is devoid of merits and
resultantly, the same is dismissed.
11. The impugned judgement and order of acquittal
passed by the learned Additional Sessions Judge, Court No.
20, Ahmedabad City in Sessions Case No. 126/2008 on
31.03.2009, is hereby confirmed.
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12. Bail bond stands cancelled. Record and proceedings
be sent back to the concerned Trial Court forthwith.
(S. V. PINTO,J)
VASIM S. SAIYED
