Gujarat High Court
State Of Gujarat vs Dashrathbhai Nadaji Bhil on 6 January, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 947 of 2009
FOR APPROVAL AND SIGNATURE: Sd/-
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting Yes No
No
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STATE OF GUJARAT
Versus
DASHRATHBHAI NADAJI BHIL
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Appearance:
MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
NON BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 06/01/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant - State under
Section 378(1)(3) of the Code of Criminal Procedure, 1973
(hereinafter referred to as 'the Code') against the judgment
and the order dated 30.01.2009 in Sessions Case No.57 of
2007 passed by the learned Additional Sessions Judge, Court
No.27, Ahmedabad (hereinafter referred to as 'the learned
Trial Court'), whereby, the learned Trial Court has acquitted
the respondent - accused from the offences punishable
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under Sections 498-A, 294(b), 323 and 306 of the Indian Penal
Code (hereinafter referred to as 'the IPC'). The respondent is
hereinafter referred to as 'the accused' as he stood in the
original case, for the sake of convenience, clarity and brevity.
2. The relevant facts leading to filing of the present appeal are
as under:
2.1. That the marriage of deceased Jashiben Dashrathbhai Bhil
and the accused Dashrathbhai Nadaji Bhi was solemnized 15
years ago and out of their wedlock, they had two children.
The incident occurred on 24.10.2006 at around 10:00pm,
when Jashiben had returned to her matrimonial home from
her parental home and at that time, for no reasons, the
accused abused her and physical assaulted her. That
Jashiben and her children shouted, and thereafter, she took
the kerosene jar, which was lying in the house, and poured
kerosene on herself and set herself ablaze. As her both the
children and her husband started shouting, the neighbours
came and took her to Civil Hospital, Ahmedabad for medical
treatment where she was admitted in Ward No.G-1. That she
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sustained burn injuries on her body and on both the hands.
Jashiben Dashrathbhai Bhil filed a complaint from the Civil
Hospital, Ahmedabad, which was registered at Shahibaug
Police Station being C.R.No.I-410 of 2006 under Section
498(A), 294(b), 323 of the IPC and her dying declaration was
recorded by the Executive Magistrate and during treatment,
she succumbed to the burn injuries and her body was sent
for post-mortem. The Investigating Officer has submitted a
report to add section 306 of the IPC in the FIR, recorded that
statements of the connected witnesses, drew the necessary
panchnamas and as there was sufficient evidence against the
accused, a charge sheet came to be filed before the learned
Chief Judicial Magistrate, Ahmedabad. As the case was
exclusively triable by the learned Sessions Court,
Ahmedabad (Rural), an order under Section 209 of the Code
was passed and the case was committed to the Sessions
Court, Ahmedabad (Rural) and registered as Sessions Case
No. 57 of 2007.
2.2. The accused was duly served with the summons and the
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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 and a charge was framed by the learned Trial
Court at Exh.1 and the statement of the accused was
recorded at Exh.2, wherein, the accused denied all the
contents of the charge and the entire evidence of the
prosecution was taken on record.
2.3. The prosecution has produced the following evidences in
support of the case.
:: Oral Evidence ::
Sr.No. PW Name Exh.
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:: Documentary Evidence ::
Sr.No. Particulars Exh.
5 Report regarding offence u/s.157 of Cr.P.C. 18
6 Report regarding addition of S.306 of the IPC 19
2.4. After the closing pursis was submitted by the learned APP at
30, the further statement of the accused under Section 313 of
the Code was recorded wherein the accused denied all the
evidence of the prosecution, the accused refused to step into
the witness box or examine the witnesses on his behalf and
after hearing the arguments of the learned APP and learned
advocate for the accused and after perusing the documents
on record, the learned Trial Court, by the impugned
judgment and order, was pleased to acquit the accused for
the offences punishable under Sections 498-A, 294(b), 323
and 306 of the Indian Penal Code.
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3. Being aggrieved and dissatisfied with the impugned
judgment and order passed by the learned Trial Court, the
appellant - State has filed the present appeal mainly stating
that the prosecution has examined 9 witnesses and produced
8 documentary evidences on record in support the case, but
the learned Trial Court has not properly appreciated the
same in proper perspective. That the learned Trial Court has
not appreciated the legal provisions and has committed
grave error, which has resulted into serious miscarriage of
justice. Even though, the witnesses have turned hostile, the
learned Trial Court ought to have exercised the powers
vested under the provisions of law to find out the truth to do
proper justice and hence, the impugned judgment and order
deserves to be quashed and set aside. Though the act of
deceased has taken place at the residence of the accused,
which has led to death the deceased, the accused has not
explained under what circumstances and for what reasons,
the deceased had committed such act. Even though, the
witnesses, who have been examined, are reliable, the learned
Trial Court has committed a grave error in discarding the
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evidences, and hence, the impugned judgment and order
deserves to be quashed and set aside.
4. Heard learned APP Ms. Jirga Jhaveri for the appellant -
State. Though served, the respondent - accused has not
appeared either in-person or through an advocate. Perused
the impugned judgment and order of acquittal and have
reappreciated the entire evidence of the prosecution on
record of the case.
5. Learned APP Ms.Jirga Jhaveri for the appellant - State has
taken this Court through the entire evidence produced by
the prosecution and has vehemently argued that the learned
Trial Court has not appreciated the evidence properly and
the prosecution has produced cogent evidence to prove the
the case and has successfully proved the case against the
accused but the learned Trial Court has not considered the
same and has acquitted the accused. Learned APP has urged
this Court to quash and set aside the impugned judgment
and order of acquittal and to find the accused guilty for the
said offence. Learned APP has urged this Court to allow the
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present appeal and impose maximum sentence on the
accused.
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 in the case of Mallappa & Ors. Vs. State of
Karnataka passed in Criminal Appeal No.1162 of 2011 on
12.02.2024, wherein, the Apex Court has observed in Para
Nos. 24 to 26, as under:
"24. We may firstly discuss the position of law regarding the scope
of intervention in a criminal appeal. For, that is the foundation
of this challenge. It is the cardinal principle of criminal
jurisprudence that there is a presumption of innocence in
favour of the accused, unless proven guilty. The presumption
continues at all stages of the trial and finally culminates into a
fact when the case ends in acquittal. The presumption of
innocence gets concretized when the case ends in acquittal. It is
so because once the Trial Court, on appreciation of the evidence
on record, finds that the accused was not guilty, the
presumption gets strengthened and a higher threshold is
expected to rebut the same in appeal.
25. No doubt, an order of acquittal is open to appeal and there is no
quarrel about that. It is also beyond doubt that in the exercise of
appellate powers, there is no inhibition on the High Court to re-
appreciate or re-visit the evidence on record. However, the
power of the High Court to re-appreciate the evidence is a
qualified power, especially when the order under challenge is
of acquittal. The first and foremost question to be asked is
whether the Trial Court thoroughly appreciated the evidence
on record and gave due consideration to all material pieces of
evidence. The second point for consideration is whether the
finding of the Trial Court is illegal or affected by an error of law
or fact. If not, the third consideration is whether the view taken
by the Trial Court is a fairly possible view. A decision of
acquittal is not meant to be reversed on a mere difference of
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opinion. What is required is an illegality or perversity.
26. It may be noted that the possibility of two views in a criminal
case is not an extraordinary phenomenon. The 'two-views
theory' has been judicially recognized by the Courts and it
comes into play when the appreciation of evidence results into
two equally plausible views. However, the controversy is to be
resolved in favour of the accused. For, the very existence of an
equally plausible view in favour of innocence of the accused is
in itself a reasonable doubt in the case of the prosecution.
Moreover, it reinforces the presumption of innocence. And
therefore, when two views are possible, following the one in
favour of innocence of the accused is the safest course of action.
Furthermore, it is also settled that if the view of the Trial Court,
in a case of acquittal, is a plausible view, it is not open for the
High Court to convict the accused by reappreciating the
evidence. If such a course is permissible, it would make it
practically impossible to settle the rights and liabilities in the
eyes of law. In Selvaraj v. State of Karnataka3,
"13. Considering the reasons given by the trial court and on
appraisal of the evidence, in our considered view, the
view taken by the trial court was a possible one. Thus,
the High Court should not have interfered with the
judgment of acquittal. This Court in Jagan M. Seshadri
v. State of T.N. [(2002) 9 SCC 639] has laid down that as
the appreciation of evidence made by the trial court
while recording the acquittal is a reasonable view, it is
not permissible to interfere in appeal. The duty of the
High Court while reversing the acquittal has been dealt
with by this Court, thus:
"9. ...We are constrained to observe that the High
Court was dealing with an appeal against
acquittal. It was required to deal with various
grounds on which acquittal had been based
and to dispel those grounds. It has not done so.
Salutary principles while dealing with appeal
against acquittal have been overlooked by the
High Court. If the appreciation of evidence by
the trial court did not suffer from any flaw, as
indeed none has been pointed out in the
impugned judgment, the order of acquittal
could not have been set aside. The view taken
by the learned trial court was a reasonable
view and even if by any stretch of imagination,
it could be said that another view was possible,
that was not a ground sound enough to set
aside an order of acquittal."" (emphasis
supplied)
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In Sanjeev v. State of H.P., the Hon'ble Supreme Court
analyzed the relevant decisions and summarized the
approach of the appellate Court while deciding an appeal
from the order of acquittal. It observed thus:
"7. It is well settled that:
7.1. While dealing with an appeal against acquittal, the
reasons which had weighed with the trial court in
acquitting the accused must be dealt with, in case the
appellate court is of the view that the acquittal
rendered by the trial court deserves to be upturned (see
Vijay Mohan Singh v. State of Karnataka5, Anwar Ali
v. State of H.P.)
7.2. With an order of acquittal by the trial court, the normal
presumption of innocence in a criminal matter gets
reinforced (see Atley v. State of U.P.)
7.3. If two views are possible from the evidence on record,
the appellate court must be extremely slow in
interfering with the appeal against acquittal (see
Sambasivan v. State of Kerala)."
7. In Para - 36, the Apex Court, in the case of Mallappa (Supra),
has observed as under:
"36. Our criminal jurisprudence is essentially based on the promise
that no innocent shall be condemned as guilty. All the
safeguards and the jurisprudential values of criminal law, are
intended to prevent any failure of justice. The principles which
come into play while deciding an appeal from acquittal could
be summarized as:
(i) Appreciation of evidence is the core element of a
criminal trial and such appreciation must be
comprehensive - inclusive of all evidence, oral or
documentary;
(ii) Partial or selective appreciation of evidence may result
in a miscarriage of justice and is in itself a ground of
challenge;
(iii) If the Court, after appreciation of evidence, finds that
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two views are possible, the one in favour of the
accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible
view, mere possibility of a contrary view shall not
justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the
acquittal in appeal on a re-appreciation of evidence, it
must specifically address all the reasons given by the
Trial Court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the
appellate Court must demonstrate an illegality,
perversity or error of law or fact in the decision of the
Trial Court.
8. It is a settled principle of law that in an appeal against
acquittal, the Appellate Court is circumscribed by limitation
that no interference has to be made in the order of acquittal
unless after appreciation of the evidence produced before the
learned Trial Court, it appears that there are some manifest
illegality of perversity which could not have been possibly
arrived at by the Court. It is also a settled principle that there
is no embargo on the Appellate Court to review the evidence
but, generally the order of acquittal shall not be interfered
with as the presumption of innocence of the accused is
further strengthened by the order of acquittal. The golden
thread which runs through the web of administration of
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justice in criminal cases is that if two views are possible on
the evidence adduced in the case of the prosecution i.e. (i)
guilt of the accused and (ii) his innocence, the view, which is
in favour of the accused, should be adopted, and if the trial
Court has taken the view in favour of the accused, the
Appellate Court should not disturb the findings of the
acquittal. The Appellate Court can interfere with the
judgment and order of acquittal only when there are
compelling and substantial reasons and the order is clearly
unreasonable and where the Appellate Court comes to
conclusion that based on the evidence, the conviction is a
must.
9. To bring home the charge against the accused, the
prosecution has examined PW-1 Dr.Alpeshbhai
Gordhanbhai Gangani at Exh.4 and this witness is the
Medical Officer, who had conducted the post-mortem on the
dead body of the deceased. The post-mortem note has been
produced at Exh.5 and as per the post-mortem note, the
deceased had sustained 1st, 2nd and 3rd degree burns on her
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neck, chest, abdomen and back and had sustained 60% burn
injuries, which were ante-mortem in nature. As per post-
mortem note, the cause of death was septicemia over the
body. During the cross-examination, the witness has
admitted that the injuries shown in column No.17 may be
sustained accidentally also.
9.1. The prosecution has examined PW-2 Maheshbhai
Mohanbhai Bhil at Exh.9 and this witness is the panch
witness of the panchnama of the place of offence, which is
produced at Exh.10 but, the witness has not supported the
case of the prosecution and has been declared hostile.
9.2. The prosecution has examined PW-3 Rajeshbhai Ishwarbhai
Parmar at Exh.12 and the witness is the panch witness of the
panchnama of the place of offence, which is produced at
Exh.10 and the witness has stated that in his presence, the
match box and kerosene jar were seized.
9.3. The prosecution has examined PW-4 Lilaben Vinodbhai Bhil
at Exh.14 and the witness is the mother of deceased Jashiben
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and has stated that her daughter had a fight with her
husband but, she does not know whether the accused had
physically assaulted her daughter. As she was called, she
had gone to the Civil Hospital, where she had seen her
daughter with bandages but, her daughter could not speak.
During the cross-examination, the witness has stated that she
had no personal knowledge about the incident and during
the 15 year's marriage span of her daughter and the accused,
here daughter had never complained about any physical
assault by the accused.
9.4. The prosecution has examined PW-5 Meenaben Vasantbhai
Bhil at Exh.15 and PW-6 Gautambhai Shankarbhai Bhil at
Exh.17 and the witnesses are the panch witnesses of the
Inquest Panchnama, which is produced at Exh.16. Both the
witnesses have not supported the case of the prosecution
and have been declared hostile and during the cross-
examination, nothing to support the case of the prosecution
has come on record.
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9.5. The prosecution has examined PW-7 Laxmanbhai Keshavlal
Parghi at Exh.20 and this witness was working as the
Executive Magistrate in the Metropolitan Executive Court,
Ahmedabad. The witness has stated that Jayesh Patel, the
Executive Magistrate, who has recorded the dying
declaration of deceased Jashiben Dashrathbhai Bhil on
25.10.2006, had expired and as he had the charge of the post,
he has produced the yadi at Exh.21 and the dying
declaration at Exh.22. During the cross-examination, the
witness has stated that he has no personal knowledge about
the dying declaration and the endorsement made on the
dying declaration has not been made in his presence.
9.6. The prosecution has examined PW-8 Vasantbhai Vinodbhai
Bhil at Exh.23 and the witness is the brother of deceased
Jashiben and he had stated that he does not know whether
any quarrel had taken place between his sister and brother-
in-law. He has stated that as his nephew had called him, he
had gone to the hospital along with his nephew where he
had seen his sister with bandages and she could not speak.
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During the cross-examination, he has stated that during her
married life of 15 years, his sister had never complained
about her husband regarding any physical assault.
9.7. The prosecution has examined PW-9 Naynaben Kanaiyalal
Bhatt at Exh.24 and the witness is the neighbour of the
deceased but, she has not supported the case of the
prosecution. During the cross-examination, the witness has
stated that there was a good relationship between the
deceased Jashiben and her husband - accused herein and she
had never seen that the accused had physically assaulted
deceased Jashiben at any time.
9.8. The prosecution has examined PW-10 Ranveersinh
Dalpatsinh Solanki at Exh.26 and this witness was working
as Police Constable with M.A.Rathod, Police Sub Inspector in
Shahibaug Police Station. This witness has stated that as
M.A.Rathod, Police Sub Inspector has expired, he has come
to give deposition. The witness has stated that deceased
Jashiben had filed a complaint in the presence of
M.A.Rathod, Police Sub Inspector, which is produced at
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Exh.27, and he has identified the signature of M.A.Rathod,
Police Sub Inspector on the complaint.
9.9. The prosecution has examined PW-11 Atmaram Jethabhai
Chavda at Exh.29 and the witness has stated that he was a
member of the Investigating Squad in Shahibaug Police
Station, and on 03.11.2006, he had gone to the Civil Hospital
where the dead body of deceased Jashiben was lying and he
had prepared an Inquest Panchnama in the presence of the
panch witnesses, which is produced at Exh.16. The witness
has stated that as a kerosene lamp had fallen on the head of
deceased Jashiben, she received burn injuries and had
succumbed to the burn injuries.
10. On appreciation of the entire evidence of the prosecution, it
appears that the prosecution has proved that deceased
Jashiben Dashrathbhai Bhil died due to burn injuries and
she had sustained 1st, 2nd and 3rd degree burns on her neck,
chest, abdomen and back and had sustained 60% burn
injuries and had expired during treatment. The charge
against the accused is framed under Section 498(A), 294(b),
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223 and 306 and the prosecution has examined PW-4 Lilaben
Vinodbhai Bhil at Exh.14, the mother of deceased Jashiben
and PW-8 Vasantbhai Vinodbhai Bhil at Exh.23, the brother
of deceased Jashiben but, both of them have not stated about
any ill-treatment to deceased Jashiben by the accused during
their marriage span of 15 years and as per the case of the
prosecution, deceased Jashiben has filed the complaint but,
M.A.Rathod, Police Sub Inspector, who had recorded the
complaint, has expired and the contents of the complaint
have not been proved. Moreover, Jayesh Patel, the Executive
Magistrate, who had recorded the dying declaration of
deceased Jashiben on 25.10.2006, which is produced at
Exh.22, has expired and the contents of the dying declaration
have not been proved. On the dying declaration, there is an
endorsement "patient was conscience, able to speak" but
there is no iota of evidence as who was the Medical Officer,
who had made such endorsement on the dying declaration.
As per the case of the prosecution both the children of the
accused and the deceased are eye-witnesses but, they have
not been examined by the prosecution. The learned Trial
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Court has considered that PW-11 Atmaram Jethabhai
Chavda, Police Sub Inspector, who has prepared the Inquest
Panchnama, has stated that deceased Jashiben has expired as
a kerosene lamp had fallen on her head and she had
sustained burn injuries. The learned Trial Court has
appreciated all the evidence produced by the prosecution in
proper perspective and has passed the impugned judgment
and the order acquittal.
11. On minute re-appreciation of the entire evidence of the
prosecution and the impugned judgment and order, it
appears that the learned Trial Court has thoroughly
appreciated all the evidence on record and has given due
consideration to all the material pieces of evidence. The
learned Trial Court has discussed all the oral as well as
documentary evidences and if the evidence produced by the
prosecution is examined in light of the law laid down by the
Apex Court in the case of Mallappa (supra), it appears that
the learned Trial Court has arrived at findings which are
legal and proper and there are no errors of law or facts.
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Moreover, the view taken by the learned Trial Court in
acquitting the accused is fairly possible and there is no
illegality and perversity in the impugned judgment and
order of acquittal.
12. In view of the settled position of law in the decision of
Mallappa (Supra), the learned trial Court has appreciated the
entire evidence in proper perspective and 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
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and the present appeal is devoid of merits and resultantly,
the same is dismissed.
13. The impugned judgment and order dated 30.01.2009 in
Sessions Case No.57 of 2007 passed by the learned
Additional Sessions Judge, Court No.27, Ahmedabad, is
hereby confirmed.
14. Bail bond stands cancelled. Record and proceedings be sent
back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
*F.S.KAZI.....
