Gujarat High Court
State Of Gujarat vs Jerambhai Dhudabhai Prajapati on 30 August, 2025
Author: Gita Gopi
Bench: Gita Gopi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 560 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI
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Approved for Reporting Yes No
√
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STATE OF GUJARAT
Versus
JERAMBHAI DHUDABHAI PRAJAPATI & ORS.
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Appearance:
MR MANAN S. MAHETA APP for the Appellant(s) No. 1
HL PATEL ADVOCATES(2034) for the Opponent(s)/Respondent(s) No. 1
MR AB GATESHANIYA(3766) for the Opponent(s)/Respondent(s) No. 2,3
MR SATYEN B RAWAL(1630) for the Opponent(s)/Respondent(s) No. 2,3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI
DESAI
Date : 30/08/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE GITA GOPI)
1. The State has filed the present appeal under
Section 378(1)(3) of the Code of Criminal
Procedure, 1973 (hereinafter referred to as the
'Cr.P.C.' for short) challenging the judgment and
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order of acquittal dated 09.11.2004 passed by the
Fast Track Court, Dhrangadhra in Sessions Case
No.41 of 1999, wherein three accused were put to
trial under Section 302 and 120B of the Indian
Penal Code (for short 'IPC').
2. The FIR as C.R. No.1 of 1997 was registered
with Dasada Police Station under Sections 302 and
452 of IPC by Dhudiben Nanjibhai Prajapati in
Civil Hospital on 05.01.1997. It had been alleged
by her that at 10:00 p.m. in the night hours, the
complainant and her son Mahendra were sleeping in
the house, the complainant - husband was sleeping
in the 'Varanda'. During the night hours the
complainant had gone to answer nature's call
outside the house. When she came back in the
house at that time, her uncle in-law - accused
No.1 came in the house and poured kerosene on her
and set her ablazed. As as result, complainant
received burn injuries. The complainant was
shifted to Becharaji Hospital and from there, she
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was taken to Mahesana Civil Hospital, where she
had given the complaint.
2.1 After the investigation, the police filed
'B' Summary report, however, a private complaint
came to be filed before the Judicial Magistrate,
First Class by husband of the deceased and on
order under Section 202 of the Cr.P.C., after the
inquiry, the learned J.M.F.C. issued process and
directed to register offence under Sections 302
and 120B of the IPC and 'B' Summary report came
to be rejected.
2.2 On committal, Sessions Case No.41 of 1999
was registered with Additional Sessions Judge and
Fast Track Court, Dhrangadhra. The charges were
framed below Exh.7 against the accused.
3. Learned APP Mr. Manan S.Maheta submitted that
the judgment and order of acquittal is contrary
to law and facts on record. The learned Judge was
required to appreciate the evidence of the
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witnesses, who had categorically deposed before
the Trial Court about the role played by the
accused persons in the incident, and thereby has
committed a grave error in not appreciating the
evidence in true perspective.
3.1 Mr. Maheta, learned APP, submitted that the
learned Trial Court Judge has not properly
appreciated the most important aspect that the
deceased herself had given FIR before the police,
wherein she had specifically stated that accused
No.1 had poured kerosene on her and set her
ablazed. The learned Judge has failed to consider
the aspect that initially husband of the
complainant had not given the statement in favour
of the prosecution before the Investigating
Officer, however, has explained by filing the
private complaint that the accused had threatened
the husband of the complainant as well as son of
the complainant, and father and son both have
given depositions against accused, which
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clarifies that accused No.1 had poured kerosene
on her.
3.2 Learned APP Mr. Maheta submitted that
explanation of the witnesses for not initially
giving evidence against the accused has to be
appreciated on the fact that both were subjected
to pressure and threats by the relatives and
under such duress were forced to give false
statement, and subsequently they could file a
private complaint before the competent Court and
the facts could be brought to notice while the
learned Judicial Magistrate ordered to file the
case against the accused.
3.3 Learned APP further submitted that the
Executive Magistrate, who had recorded the dying
declaration had supported the examination and the
Doctors conducting the postmortem has given the
cause of death. Medical Officer has fully
supported the prosecution case, who had stated
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that at the time of recording her dying
declaration, the deceased was at conscious state.
Mr. Maheta submitted that the medical papers were
placed on evidence at Exh.29. The police, who had
initially recorded the complaint was also
examined and has supported the prosecution case.
3.4 Learned APP thus, submitted that on overall
assessment of the ocular and documentary
evidence, the dying declaration together with the
evidence of the Executive Magistrate fully
supports the prosecution case. The husband and
son of the deceased substantially supported the
case of the prosecution. Initial 'B' Summary
filed by the Investigating Agency was declined by
the competent Court and on cognizance being taken
on the private complaint, the offence was
registered. Learned APP Mr. Maheta submitted that
the judgment of acquittal is required to be set
aside and the accused are required to be
convicted.
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4. The charge against three of the accused was
framed below Exh.7. The accused conspiring with
each other on 04.01.1997 at about 10 O' Clock
night entered the house of the complainant. At
that time, there were two cans in the hands of
accused No.1, who had poured kerosene on the body
of the complainant's wife and ablazed her
lighting the match stick. Thereafter, she was
taken to Becharaji Government Hospital and
Mahesana Government Hospital, where she was
declared dead on 05.01.1997 at about 1:30 hours
in the afternoon. The case was registered under
Sections 302 and 120B of the IPC.
5. The record suggests that initially a
'Janvajog' entry was filed as Station Diary No.4
of 1997 with Mahesana City Police Station. The
police filed 'B' Summary report on 20.03.1997,
which came to be declined by the Judicial
Magistrate. Learned Judge could observe the
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previous enmity between the family of the
deceased and accused No.1, as uncle in-law of the
deceased. The presence of accused No.1 at the
scene of offence was found doubtful by 'B'
Summary report submitted by the Investigating
Agency. The presence of other two accused were
also found equally doubtful. The ocular evidence
of the Executive Magistrate, who recorded dying
declaration was not found trustworthy, as it did
not reflect whether the deceased was conscious
and in a fit state of mind. Further the questions
put to the deceased while recording the dying
declaration were observed to be suggestive in
nature. The ocular testimony of the Police
Officer, who recorded the initial complaint at
the hospital was not found reliable, as no
documentary evidence was produced to prove that
he was officially on duty at the hospital.
5.1 Learned Judge has not considered the
Medical Officer's evidence as strong and reliable
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to sustain conviction observing that the history
narrated does not clearly establish the offence.
5.2 The evidence of P.W.1 - Mumtajali Merumiya,
who as a panch, had stated that the wife of Nanji
Bhagat had committed suicide. The place, as noted
in the panchnama was the house, where there were
burnt clothes, burnt mattresses and even the bed
was found to be burnt. In the middle of the room
plastic white can and 5 Ltr. open iron Tin was
noted, which disclosed the stench of kerosene.
The half burnt clothes were seized by the police.
The floor was having black spots and the kerosene
as well as water was observed.
5.3 P.W.2 - Dahiben Chaturbhai is sister in-
law (Devrani) of the deceased. She went to the
house on hearing the outcry of the complainant -
Nanjibhai. She had seen the deceased lying and
stated that after an hour she asked for water,
thereafter, they took her to the hospital. In the
cross-examination, it has come that in the Osri,
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on the bed, complainant Nanjibhai was sleeping,
and when P.W.2 and her husband reached there, she
saw Nanjibhai dousing the deceased by pouring
water on her. She had not heard of complainant
Nanjibhai telling her husband that by switching
off the light the deceased had tried to commit
suicide.
5.4 No evidence is coming on record by
deposition of P.W.2 of any allegation against the
accused. P.W.2 does not depose that the husband
of the deceased i.e. the complainant had informed
her or her husband of any act of the accused.
5.5 Complainant P.W.3 - Nanjibhai Motibhai
Prajapati in his deposition stated that the
incident had taken place at 10 O' clock at night
and he woke up when his wife started shouting. He
took his wife to the hospital with assistance of
the neighbours. The witness-complainant stated
that the Doctor at Mahesana had asked his wife,
as to how she got burnt and there the wife had
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informed the Doctor that Jeram Dhuda had poured
kerosene from two cans and had gone away, burning
her. She had informed the Doctor that Jeram Dhuda
- accused No.1 was her uncle, who was lowering
her dignity. Complainant-P.W.3 stated that the
said history was informed by his wife to the
Doctor. He referred to the pressure from his
another brothers, where he was influenced to
state that the deceased had committed suicide
because of her mental illness and therefore,
initially he had given a false statement. P.W.3
stated that if he fails to adhere to their
instructions, he was threatened to be harassed in
his community and therefore, under such duress he
had given a false complaint. In his deposition as
well as in the cross-examination, it had come on
record that the son of the complainant was in the
house.
5.6 From the deposition, it could be noticed
that the complainant could only know about the
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incident after he could smell burning from the
house and he woke up only after hearing the
shouts. The deposition also notes that after
hearing the outcry, Chatur Soma, Bhailalbhai
Chaturbhai, Maganbhai Motibhai, Ramilaben
Dalsukhbhai, Dalsukhbhai Maganbhai and Dahiben
Chaturbhai had come there. He had heard the sound
of latch of the door being opened and when he
enquired, his wife told him that she was going
out to answer the nature's call. Thereafter, his
wife also informed her that she had woken up to
switch off the light and after switching the
light, she had gone into the room of Mahendra.
6. The deposition does not inspire confidence
since initially the complainant, as a husband of
the deceased has not supported the case of the
prosecution, 'B' Summary was filed. The evidence
suggests that immediately the injured victim had
not informed, even P.W.2 or her husband or all
the others who had come there immediately, of how
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the incident had taken place. The complainant
himself was sleeping in the 'Varanda'. He had
heard and even seen his wife going out to urinate
or defecate, again she had woken up to switch off
the light. It cannot be believed in the fact that
when the complainant himself was sleeping in the
'Varanda', some other person named as accused
could enter the house, and observing the sequence
of the incident it cannot be said that the
complainant was fast asleep to not even know of
any third person entering his house at about 10
O' clock at night.
6.1 The complainant husband refers to the
statement given by the wife to the Doctor
alleging the accused No.1 had poured the kerosene
on her body and set her ablazed. Immediately on
burning on high flame, she would have struggled
and cried, and the presence of third person in
the house would have immediately be known, but
that has not happened. It cannot be believed that
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in presence of the husband as well as son,
accused would have entered the house and burnt
the deceased. The conduct of father and son P.W.4
- Mahendra Nanjibhai Prajapati would become
doubtful. Even son P.W.4 could not explain as to
what they were doing when deceased was set to
fire.
6.2 According to P.W.4, the father was sleeping
in the 'Osri' and mother had gone out for 10 to
15 minutes to answer the natures call. P.W.4
deposed that he had seen accused No.1 - Jerambhai
Dhudabhai when he had come in the house and
according to P.W.4, accused No.1 was loitering
there. He came to know only when his mother
started burning and his father had poured water
to douse the fire. P.W.4 also stated that his
mother was taken to the hospital by father and
the relatives. Next day in the morning, he had
gone to the hospital and his mother had informed
him that accused No.1 had poured kerosene to burn
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her. The suggestion of the mother being of
unstable mind and thereby committing suicide has
been declined by the son.
6.3 In the cross-examination, the son admits
that when he woke up, he had not seen accused
No.1 outside his house, nor his father had seen
him. He denied of stating before the police that
two months earlier his uncle Keshabhai and
accused No.1 had gone to Ahmedabad for engagement
of his brother, but there was no success,
therefore, the mother was suspicious of accused
No.1 and on that ground she had given his name.
He also stated that initially he had not given
statement against accused under the pressure of
his elder uncle and the community people.
6.4 The conduct of the son also becomes
doubtful. Though, he was in the house he had not
taken any step to save his mother and the fact
that deceased had not informed the husband and
son about alleged act of accused No.1, where the
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circumstances shows that even most of the
neighbours had come there, becomes an
unbelievable fact.
7. The Executive Magistrate - Bhavansinh
Ramsinh Rathod was examined as P.W.5. The dying
declaration was at Exh.22. As observed by the
learned Trial Court, the question put by the
Magistrate was very suggestive in nature, where
he had not asked about how the incident had taken
place or how she got burnt, rather the question
was that why Kerosene was poured on her, and on
that, it was stated by the Executive Magistrate
that deceased had informed that there were
quarrels in the house and those quarrels were by
accused No.1 - Jerambhai Dhudabhai and he was
trying to lower her down in the village. Another
suggestive question, which was put by the
Executive Magistrate was, who all were present
there when the Kerosene was poured on her. It
appears that the answers have been noted to
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exonerate the other family members. The deceased
stated that the husband was sleeping in the
'Osri' and she was sleeping in the house, and
when she woke up for answering the nature's call,
she was pulled back in the house and the kerosene
was poured upon her. The son Mahendra was
sleeping inside the house where it becomes
impossible to believe that the son and father,
who were in the house had not heard of accused
No.1 entering the house who was alleged of
pulling the deceased in the house. When she
started shouting after putting off the fire, she
was taken to the hospital. Father and son had not
seen accused No.1 even running away.
8. The learned Trial Court Judge observation is
obvious since the circumstances shows that dying
declaration does not inspire confidence. In the
case of Atbir Vs. Government of NCT Of Delhi,
(2010) 9 SCC 1, the principles governing the
credibility of D.D. has been noted wherein it has
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been held as under:
"The following principles can be culled out
from earlier decisions of the Supreme Court:
(i) Dying declaration can be the sole basis
of conviction if it inspires the full
confidence of the Court.
(ii) The Court should be satisfied that the
deceased was in a fit state of mind at the
time of making the statement and that it was
not the result of tutoring, prompting or
imagination.
(iii) Where the Court is satisfied that the
declaration is true and voluntary, it can
base its conviction without any further
corroboration.
(iv) It cannot be laid down as an absolute
rule of law that the dying declaration
cannot form the sole basis of conviction
unless it is corroborated. The rule
requiring corroboration is merely a rule of
prudence.
(v) Where dying declaration is suspicious,
it should not be acted upon without
corroborative evidence.
(vi) A dying declaration which suffers from
infirmity such as the deceased was
unconscious and could never make any
statement cannot form the basis of
conviction.
(vii) Merely because a dying declaration
does not contain all the details as to the
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occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it
is not to be discarded.
(ix) When the eye-witness affirms that the
deceased was not in a fit and conscious
state to make the dying declaration, medical
opinion cannot prevail.
(x) If after careful scrutiny, the Court is
satisfied that it is true and free from any
effort to induce the deceased to make a
false statement and if it is coherent and
consistent, there shall be no legal
impediment to make it basis of conviction,
even if there is no corroboration."
9. The dying declaration does not appear to be
true and voluntary. Deceased died on the next
day. The husband was along with the deceased.
Doctor Dhirajkumar Jivanlal Soni was examined as
P.W.6, whose testimony shows that during the
course of treatment on 05.01.1997, the deceased
died. The inquest panchnama was drawn and the
cause of death was shock due to intensive burns.
10. P.W.7 - Doctor Nimesh Ramanlal Shah stated
that he had recorded the history of deceased,
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where she was brought at 1:30 at night hours of
05.01.1997 under the transfer communication of
C.H.C. Becharaji. Doctor stated that she was
completely conscious and in the history before
the Doctor she had stated that at night about 10
O' clock, her uncle Jerambhai Dhudabhai poured
kerosene on her and by lighting the match stick
had burned her. The Doctor in his deposition
stated that he may have treated the patient for
about half an hour. The Executive Magistrate came
at about 3:15 with Yadi, and Doctor stated that,
as there was no need of his presence in the
surgical ward therefore, none had come to call
him. He referred to the signature on the dying
declaration (Exh.21), to state that after signing
the document Exh.21, he had gone along with the
Magistrate. The contrary evidence on record of
the Doctor, itself does not bring reliability on
the dying declaration. The Doctor also affirmed
that he had not given any separate certificate
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regarding consciousness of the patient. The note
by the C.M.O. confirms that the patient was with
husband as well as with the nephew. The Doctor
affirmed that he had not put any signature or
endorsement beneath the dying declaration, noting
the time of conclusion. The Doctor also does not
remember of the presence of any relatives beside
the patient, when he had put the endorsement on
Exh.22.
11. The evidence cumulatively, if read together
does not bring the true facts on record, though
the husband was sleeping in the 'Osri' and was
awoken when the deceased wife had gone out to
release herself. He was even awoken when she had
put off the light. After hearing the shouts of
the wife, he entered the room and had tried to
extinguish the fire by pouring water. In spite of
the fact, he had not deposed of seeing accused
No.1 or rest of the two accused in the house.
Nothing has come on record as to how accused
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Nos.2 and 3 were connected. The Executive
Magistrate could not state that none were present
while the dying declaration was recorded, nor the
Doctor who had put the endorsement on the dying
declaration could affirm such fact that there was
no tutoring or prompting from the side of other
family members.
12. Further, the presence of accused in the
house of complainant could not be proved. The
facts also become doubtful. It appears that the
statement naming accused No.1 would be out of
such perception of the deceased believing him to
be responsible for the family issues. Apart from
that, nothing could have been brought on record
of any reason for accused No.1 as uncle in-law to
set the deceased on fire. The immediate conduct
of the complainant father as well as son also
creates doubts. The deceased was admitted at 1:30
at night on 05.01.1997 and dead body was received
at 3:45 on 05.01.1997. The degree of burn was 95
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to 98% and the period of her hospitalization does
not make the deposition of Doctor, who had placed
endorsement on the dying declaration as reliable
as well as deposition of the Executive Magistrate
by placing suggestive questions to the deceased
and expecting answers accordingly, does not
inspire confidence to rely on the dying
declaration of the deceased. How all three
accused had conspired to kill deceased, has not
been proved and in view of the fact that 'B'
Summary was filed by the Investigating Officer
and endorsing Doctor was not present, while dying
declaration was recorded, and when he had not
given any separate certificate regarding
consciousness of deceased as well as fit state of
mind to depose, the dying declaration cannot be
relied upon for conviction.
13. Learned Trial Court Judge has observed that
the husband of the deceased has not given any
complaint against the accused of any threat to
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him for retracting his statement. The statement
before the police on 05.01.1997 was referred to
the witness and he stated of no family dispute or
ill-will with accused No.1, and had stated that
his wife has falsely named the accused. The
learned Trial Court Judge has doubted the conduct
of the husband as well son. The son deposition of
his mother informing him that accused No.1 had
poured kerosene on her and on next day he came to
know when he visited his mother at Mahesana
Government Hospital also becomes doubtful. Such
statement was not given by him before the Court
at Bajana, nor had he given any statement that
accused No.1 and his wife had threatened him and
his brother to show them the consequences, has
brought contradiction on record in context to
retraction of their statements.
14. In the case of Chandrappa v. State of
Karnataka, (2007) 4 SCC 415, the Hon'ble Supreme
Court has held as under:
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"8. 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.
42. From the above decisions, in our
considered view, the following general
principles regarding powers of the 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,
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1973 puts no 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 emphasise 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
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appellate court should not disturb the
finding of acquittal recorded by the trial
court.
44. In our view, if in the light of above
circumstances, the trial court felt that the
accused could get benefit of doubt, the said
view cannot be held to be illegal, improper
or contrary to law. Hence, even though we
are of the opinion that in an appeal against
acquittal, powers of the appellate court are
as wide as that of the trial court and it
can review, reappreciate and reconsider the
entire evidence brought on record by the
parties and can come to its own conclusion
on fact as well as on law, in the present
case, the view taken by the trial court for
acquitting the accused was possible and
plausible. On the basis of evidence,
therefore, at the most, it can be said that
the other view was equally possible. But it
is well established that if two views are
possible on the basis of evidence on record
and one favourable to the accused has been
taken by the trial court, it ought not to be
disturbed by the appellate court. In this
case, a possible view on the evidence of
prosecution had been taken by the trial
court which ought not to have been disturbed
by the appellate court. The decision of the
appellate court (the High Court), therefore,
is liable to be set aside.
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15. In the case of H.D. Sundara v. State of
Karnataka, (2023) 9 SCC 581, the Hon'ble Supreme
Court has held as under:
8. In this appeal, we are called upon to
consider the legality and validity of the
impugned judgment [State of Karnataka v.
H.K. Mariyappa, 2010 SCC OnLine Kar 5591]
rendered by the High Court while deciding an
appeal against acquittal under Section 378
of the Code of Criminal Procedure, 1973 (for
short "CrPC"). The principles which govern
the exercise of appellate jurisdiction while
dealing with an appeal against acquittal
under Section 378CrPC can be summarised as
follows:
8.1. The acquittal of the accused further
strengthens the presumption of innocence;
8.2. The appellate court, while hearing an
appeal against acquittal, is entitled to
reappreciate the oral and documentary
evidence;
8.3. The appellate court, while deciding an
appeal against acquittal, after
reappreciating the evidence, is required to
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consider whether the view taken by the trial
court is a possible view which could have
been taken on the basis of the evidence on
record;
8.4. If the view taken is a possible view,
the appellate court cannot overturn the
order of acquittal on the ground that
another view was also possible; and
8.5. The appellate court can interfere with
the order of acquittal only if it comes to a
finding that the only conclusion which can
be recorded on the basis of the evidence on
record was that the guilt of the accused was
proved beyond a reasonable doubt and no
other conclusion was possible."
16. In view of the observations made hereinabove
and principle laid down in the above referred
judgment, we find that observations of the
learned Trial Court Judge consistent and the
appreciation of the evidence does not require any
interference of this Court. There is no
perversity or illegality in the conclusion
reached by the learned Trial Court Judge. The
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present appeal fail merits hence, the present
appeal stands dismissed. The judgment of
acquittal is hereby upheld. Record & Proceedings
be sent back to the concerned Trial Court
forthwith.
(GITA GOPI,J)
(UTKARSH THAKORBHAI DESAI, J)
Pankaj/8
