Gujarat High Court

State Of Gujarat vs Patel Shaileshkumar @ Kamleshkumar ... on 18 June, 2025

Author: Vaibhavi D. Nanavati

Bench: Vaibhavi D. Nanavati

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                            R/CR.A/233/1998                                   JUDGMENT DATED: 18/06/2025

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                                IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                          R/CRIMINAL APPEAL NO. 233 of 1998


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                       and
                       HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI
                       =============================================

                                   Approved for Reporting                    Yes           No

                       =============================================
                                               STATE OF GUJARAT
                                                    Versus
                                PATEL SHAILESHKUMAR @ KAMLESHKUMAR SANKABHAI
                       =============================================
                       Appearance:
                       MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
                       MR. RAHUL R DHOLAKIA(6765) for the Opponent(s)/Respondent(s)
                       No. 1
                       =============================================

                         CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
                               and
                               HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI
                               DESAI

                                                         Date : 18/06/2025

                                                         ORAL JUDGMENT

(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)

1. By way of present appeal under Section 378 of the

Criminal Procedure Code, 1973, the appellant - State has

challenged the judgment and order of acquittal passed by the

learned Sessions Court, Mehsana in Sessions Case No.223 of

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1997 dated 13.01.1998 wherein, the accused is charged for

the offence punishable under Section 498A and 302 of the

Indian Penal Code, 1860.

2. Heard Ms. Jirga Jhaveri, learned Additional Public

Prosecutor appearing for the appellant - State and Mr. Rahul R.

Dholakia, learned advocate appearing for the respondent -

accused.

3. Briefly stated, the case of the prosecution is that (true

translation of the impugned judgment) the marriage of the

accused Patel Shaileshkumar @ Kamleshkumar Shankabhai

was solemnized with Nitaben, the victim herein and whose

murder is charged on the accused, about three years prior to

the incident and the accused used to demand the dowry from

the deceased Nitaben during marital life and as he did not like

Nitaben, he used to taunt her and subject her to mental as well

as physical harassment. As Nitaben was educated i.e.

graduate, the accused disliked it and therefore, he used to

subject her mental torture. In the residential house of the

accused situated at Jepur village of Vijapur Taluka, at 03.00

o'clock in the midnight on 04.06.1997, when the accused and

Nitaben were sleeping in the room upper floor, at about three

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o'clock in the night, the accused caught the nose of the

deceased Nitaben and forcefully as well as intentionally in

order to cause the death of Nitaben, made her consume the

poison. Nitaben removed the bottle of poison with her hand

and made uproar, therefore, both her mother-in-law and

father-in-law, woke up and her husband opened the stopper of

the door of the room from inside and therefore, Nitaben came

in the middle room and thereafter, Madhuben, mother-in-law of

Nitaben, her brother-in-law and Sankabhai, father-in-law came

and said to Nitaben that you have consumed poison yourself

and asked Nitaben to leave the house. Mother-in-law and

father-in-law of Nitaben brought Nitaben at the hospital of Dr.

Subhashbhai Dave at Vijapur in the jeep for the treatment.

Nitaben's mother-in-law, father-in-law, brother-in-law, sister-in-

law and Shantaben etc. had also come to the hospital. Nitaben

was given treatment in the hospital of Dr. Subhashbhai, but as

there was no satisfactory improvement in the health of

Nitaben, she was transferred to Civil Hospital, Ahmedabad at

09.40 o'clock in the morning on 05.06.1997 and Nitaben died

at Civil Hospital, Ahmedabad at 03.30 o'clock on 13.06.1997.

3.1 Complaint of Nitaben was recorded by H.C. Becharbhai

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Shankarbhai Raval on 04.06.1997 in the hospital of Dr.

Subhash Dave at Vijapur. After recording the complaint of

Nitaben, H.C. Mr. Raval had given the same to the PSO, Vijapur

Police Station for registering an offence.

3.2 After registering the offence, the PSO forwarded the

further investigation to the Head Constable of the Aaglod

Outpost, however, due to death of Nitaben on 13.06.1997,

further investigation was taken over by Mr. N.S. Patel, PI,

Vijapur Police Station from HC Mr. Kanjibhai. He drew

panchnama of scene of offence and recorded the statement of

the concerned witnesses. Earlier, the FIR lodged in this offence

was under Section 328, 498A of the Indian Penal Code, but

upon death of victim Nitaben on 13.06.1997, Section 302 of

the Indian Penal Code was added in the said offence. After the

investigation was taken over by P.I Mr. Patel, he verified the

panchnama of scene of offence drawn by HC Kanjibhai and

statements of the witnesses recorded by him. He arrested the

accused and recorded the statements of the witnesses of the

in-laws of deceased Nitaben. Moreover, Stomach Wash, Viscera

seized from the dead body of Nitaben and Aluminum bottle of

poison seized from the house of the accused were sent to the

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FSL, Ahmedabad for analysis and upon receipt of PM note of

deceased Nitaben and as there was sufficient evidence against

the accused, PI had filed charge-sheet against the accused in

the court of Ld. JMFC, Vijapur, and upon receipt of analysis

report of FSL, the same was appended with the charge-sheet.

Ld. JMFC, Vijapur gave copies of papers including charge-sheet

to the accused and as the Ld. JMFC, Vijapur had no jurisdiction

to try the said case, he committed the said case to the Ld.

Sessions Judge, Mahesana as per the provisions of Section 209

of the Cr.P.C. and from there, the said case is transferred to

the Sessions Court.

3.3 The prosecution has produced following oral evidences:

(true translation)

1) Dr. Surendra Chhaganlal Yadav, who did P.M. of deceased Nitaben has been examined vide Exhibit-13.

2) Mr. Baldevbhai Shankarbhai Patel, Deputy Mamlatdar, Vijapur, who recorded the Dying Declaration of Nitaben has been examined vide Exhibit-15.

3) Dr. Subhash Harilal Dave, in whose hospital deceased Nitaben admitted first, has been examined vide Exhibit-18.

4) Mr. Manubhai Maganbhai Prajapati, Panch witness of panchnama of bottle of poison recovered from the house of the accused, has been examined vide Exhibit-21.

5) Mr. Babubhai Becharbhai Patel, another panch witness has been examined vide Exhibit-23.

6) Mr. Shankarbhai Gobardas Patel, father of deceased Nitaben has been examined vide Exhibit-24.

7) Mr. Ramabhai Dhulabhai Patel, maternal uncle of deceased Nitaben has been examined vide Exhibit-25.

8) Mr. Trikambhai Gobarbhai Patel, uncle of deceased Nitaben has been examined vide Exhibit-26.

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9) Witness Mr. Kacharabhai Mohanbhai has been examined vide Exhibit-27.

10) Mr. Becharbhai Shankarbhai Raval, Head Constable, who recorded the complaint of deceased Nitaben, has been examined vide Exhibit-28.

11) Mr. Naranbhai Gangaram Patel, PI, Vijapur Police Station, the Investigating Officer has been examined vide Exhibit-30.

3.4 The prosecution has produced following documentary

evidences: (true translation)

1) Exhibit-7, Report deputing the investigation to Kanjibhai, Head Constable of Aaglod Outpost by PSO of Vijapur Police Station, after registering the offence.

2) Exhibit-8, Entry regarding intimation by Dr. Subhashbhai Dave to the Vijapur Police Station that Nitaben is admitted for poison consumption.

3) Exhibit-9, Panchnama of scene of offence.

4) Exhibit-10, Inquest panchnama of deadbody of deceased Nitaben

5) Exhibit-11, Panchnama of physical condition of accused Shaileshkumar @ Kamleshkumar at the time of arrest.

6) Exhibit-14, P.M. Report of deceased Nitaben.

7) Exhibit-19, Certificate of Dr. Subhashbhai Dave.

8) Exhibit-20, Case papers of deceased Nitaben in the deposition of Dr. Subhashbhai Dave

9) Exhibit-22, Panchnama of bottle of poison recovered from the scene of offence.

10) Exhibit-29, Original complaint given by deceased Nitaben.

11) Exhibit-33, Certificate issued by the Medical Officer, Civil Hospital, Ahmedabad regarding examination and condition of Nitaben.

12) Exhibit-31, Dispatch note of muddamal sent to the FSL, Ahmedabad.

13) Exhibit-32, Analysis Report of FSL, Ahmedabad.

14) Exhibit-16, Yadi received by Mr. Baldevbhai Shankarbhai Patel, the Deputy Mamlatdar to record the D.D.

15) Exhibit-17, Original D.D. of deceased Nitaben recorded by Deputy Mamlatdar.

3.5 At the end of trial, further statement of the accused

under Section 313 of the Code of Criminal Procedure, 1973

were recorded in which, the respondents - accused pleaded

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not guilty and stated that they have been falsely implicated in

the offence. Thus, after recording the statement of accused

and considering the arguments of both the sides, the learned

Additional Sessions Judge passed the order of acquittal of the

accused. Being aggrieved and dissatisfied by the same, the

present appeal is filed by the appellant - State.

4. Ms. Jirga Jhaveri, learned APP appearing for the appellant

- State submitted that the impugned judgment rendered by

the competent Court is required to be interfered with mainly,

placing reliance on the dying declaration. It is submitted the

dying declaration is supported by the medical evidence and in

view thereof, the competent Court has failed to consider the

same in light of the documentary evidence on record. It is

submitted that the case of the prosecution is supported by the

evidence on record wherein, the dying declaration was

recorded by the Executive Magistrate, the deceased had filed a

complaint below Exh.29, the dying declaration below Exh.17

and the medical evidence below Exh.13, PM notes, are

erroneously not considered by the competent Court.

5. Mr. Rahul R. Dholakia, learned advocate appearing for

the respondent - accused herein, at the outset, has taken this

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Court through Exhibits 9, 10 and 11 duly produced on record at

page 24, 26 and 28 which are the scene of offence

panchnama, the inquest panchnama and the body panchnama

of the deceased - Nitaben, which do not support the case of

the prosecution. It is submitted that the dying declaration

recorded by the Executive Magistrate is without any

endorsement. It is submitted that the dying declaration was

recorded between 11:50 to 12:30 wherein, the doctor has

signed in the Yadi at 12:00 pm. It is submitted that the doctor

was not present when the dying declaration was recorded. The

FIR is filed at 12:00 pm. The peon who recorded the dying

declaration has not been examined. Placing reliance on the

impugned judgment rendered by the learned Sessions Court, it

is submitted that the competent Court has extensively

discussed in paragraph 16 and not believed the dying

declaration and in view thereof, the same has resulted in the

acquittal of the accused. It is submitted that the present

appeal be dismissed.

6. We have heard the learned advocates appearing for the

respective parties. We have also perused the entire record and

considered the submissions advanced by the learned

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APP/learned advocate. It emerges from the record that the

deceased - Nitaben's complaint was recorded by Becharbhai

Shankarbhai Raval on 04.06.1997 in Dr. Subhash Dave's

hospital at Vijapur below Exh.18. Nitaben having expired on

13.06.1997, the investigation was transferred to Head

Constable, Shri N.S. Patel, for the offence punishable under

Sections 328, 498A and 302 of the Indian Penal Code.

6.1 The postmortem was carried out on 13.06.1997 by Dr.

Surendra Chhaganlal Yadav, who is examined below Exh.13.

The FSL report states that the death of Nitaben was because of

consumption of poison namely, Pyrethroid Cypermethrin

poison therefore, the cause of death of Nitaben by the doctor

is opined to be by Pyrethroid Cypermethrin. The aforesaid is

not in dispute. The cause of death of Nitaben whether the

same is homicidal death or suicide is devoid of evidence on

record in view of the following:

(i) The dying declaration of deceased - Nitaben was

recorded by the Deputy Mamlatdar, Baldevbhai Shankarbhai

Patel on 04.06.1997, who deposed below Exh.15 and the dying

declaration is on record below Exh.17. Upon death of Nitaben,

the complaint lodged by her is converted into dying

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declaration.

(ii) Becharbhai Raval, Head Constable also registered

deceased - Nitaben's complaint in Dr. Subhash Dave's hospital

is also treated as dying declaration. The prosecution has relied

on two dying declarations by Nitaben on record against the

accused.

7. Considering the aforesaid, in the facts of the present

case, the following emerge:

7.1 The prosecution has based its case solely on dying

declaration. The competent Court considering the evidence on

record arrived at a finding of fact that both the dying

declarations are flawed in view of the following:

(a) The Deputy Mamlatdar records the time of dying

declaration between 11:50 to 12:30 which was duly signed by

Nitaben. Upon recording the complaint, the same was given to

P.S.O at Vijapur to register the same. Shri Becharbhai Raval

recorded the complaint between 12:00 to 12:30 in presence of

the doctor which was reduced to writing by Mohabbatsingh

Chavda, Clerk as per the wish of deceased - Nitaben, duly

signed by Nitaben in English and Gujarati, which is on record

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below Exh.17. Thus, the second dying declaration was

recorded by Head Constable, Shri Becharbhai Raval. If the

dying declaration is reliable and beyond doubt, it would be

sufficient to hold the accused responsible for the offence. The

facts of the present case is that of the circumstantial evidence.

(b) It emerges as recorded by the learned Sessions Court

that both the dying declarations have been recorded at the

same time. The doctor has made endorsement at 12:00 pm

and the dying declaration was recorded at 11:50. Dr. Dave in

his cross-examination has deposed that dying declaration is

not certified by him though, he was present in the hospital

when the dying declaration was recorded. The aforesaid

emerges from the certificate at Exh.19 at page 44. It is further

deposed that Nitaben's health was not such that she would

remember what happened/transpired.

(c) Further, as recorded by the learned Sessions Court if

deceased - Nitaben was unconscious for 8 hours, the

prosecution has failed to establish that the deceased - Nitaben

was conscious.

(d) The Deputy Mamlatdar failed to verify deceased -

Nitaben's mental state. No query is put to Nitaben or that,

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dying declaration is also not read as it emerges from the

record.

(e) The doctor was not present when the dying declaration

was recorded. The Deputy Mamlatdar has recorded the dying

declaration which, as held by the Sessions Court, is full of

lacuna wherein, the Dy. Mamlatdar failed to record the dying

declaration in the form of question-answer.

(f) Both the dying declarations are without the doctor's

certificate whether she is in a mental state to depose. Both the

dying declarations are accordingly, held to be faulty. Further,

the Clerk who reduced the dying declaration by Dy. Mamlatdar

into writing is not examined, is also not in dispute.

7.2 At this stage, it is apposite to refer to the ratio laid down

by the Hon'ble Apex Court in case of Manjunath & Ors. Vs.

State of Karnataka, reported in 2023 (15) Scale 53,

wherein, in paragraph 29, it is held that though the dying

declaration itself is a substantive piece of evidence upon which

reliance can be placed, the same can be held to be nugatory if

the person who took down the dying declaration is not

examined.

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7.3 The complaint registered by Head Constable, Baldevbhai

Raval upon death of Nitaben is treated as dying declaration.

The complaint was recorded at 12:00 and lasted till 12:30. The

Head Constable deposed that Dy. Mamlatdar went to the

hospital after the Head Constable. The Head Constable has

neither contacted Dr. Dave not met him, nor inquired about

the physical and mental state of Nitaben. No certificate is

issued by the doctor.

7.4 The prosecution has mainly relied on the dying

declaration as referred to herein above wherein, both the

dying declarations appear to be defective.

7.5 It further emerges that the scene of offence panchnama

below Exh.9, the inquest panchnama below Exh.10, the body

panchnama below Exh.11 which are on record at pages 24, 26

and 28 respectively, also do not support the case of the

prosecution.

8. The dying declaration and complaint as held by the

competent Court appear to have been written at the same

time and the same results in doubting the case of the

prosecution. Since the dying declaration is not accepted from

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the evidence on record, the other evidence on record requires

to be corroborated with the dying declaration. In absence of

any evidence on record with respect to the death of deceased

- Nitaben by the accused herein, the circumstantial evidence

on record does not point to the guilt of the accused. The

ingredients to bring a person under the ambit of Section 302

and 498A of the Indian Penal Code are missing in the facts of

the present case and in view thereof, the judgment passed by

the learned Sessions Court acquitting the accused giving them

the benefit of doubt, in our opinion, requires no interference.

8.1 We have also considered the deposition of Shankarbhai,

father of the deceased - Nitaben below Exh.24. In the

examination-in-chief, the witness deposed that Nitaben was

happily married for 2 years but, thereafter she was put to

harassment as she was more educated for which, her husband

did not like her. It is also deposed that he came to know from

outside sources that Nitaben was admitted in Dr. Dave's

hospital. In the statement before police, he deposed that

Nitaben told him about the incident. It is further deposed in

cross-examination that statement before police was because of

the influence of other people from outside. From the aforesaid,

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inference is drawn that as to how Shankarbhai came to know

of the incident, is not coming on record. Therefore, there is a

major contradiction in his deposition.

9. At this stage, it is apposite to refer to the ratio laid down

in case of Suresh Vs. State Rep. By Inspector of Police,

reported in (2025) 3 SCR 317. Relevant paragraphs of the

said decision read thus:

"12. Now coming to the issue of the dying declaration. There is no doubt regarding the well-settled position of law that a dying declaration is an important piece of evidence and a conviction can be made by relying solely on a dying declaration alone as it holds immense importance in criminal law. However, such reliance should be placed after ascertaining the quality of the dying declaration and considering the entire facts of a given case. This Court in Uttam v. State of Maharashtra (2022) 8 SCC 576, with respect to inconsistent dying declarations, observed as follows:

"15. In cases involving multiple dying declarations made by the deceased, the question that arises for consideration is as to which of the said dying declarations ought to be believed by the court and what would be the guiding factors for arriving at a just and lawful conclusion. The problem becomes all the more knotty when the dying declarations made by the deceased are found to be contradictory. Faced with such a situation, the court would be expected to carefully scrutinise the evidence to find out as to which of the dying declarations can be corroborated by other material evidence produced by the prosecution."

In other words, if a dying declaration is surrounded by doubt or there are inconsistent dying declarations by the deceased, then Courts must look for corroborative evidence to find out which dying declaration is to be believed. This will depend upon the facts of the case and Courts are required to act cautiously in such cases. The matter at hand is one such case. In the present case, the deceased had given two statements which are totally different from her subsequent statements including the statement made before PW-12 on 18.09.2008, which has been considered a dying declaration based on which the appellant has been convicted. The first statement was made to the doctor (PW-13) on the day of the incident itself where she told PW-13 that the incident occurred while she was cooking. On the same day, the second statement was made to the police constable (PW-9) where the deceased said the same thing i.e. she caught fire by accident while

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cooking in the kitchen.

14. As discussed above, in cases where the dying declaration is suspicious, it is not safe to convict an accused in the absence of corroborative evidence. In a case like the present one, where the deceased has been changing her stance and has completely turned around her statements, such a dying declaration cannot become the sole basis for the conviction in the absence of any other corroborative evidence."

10. It is a cardinal principle of criminal jurisprudence that in

an appeal against acquittal, the appellate Court should be slow

in disturbing a finding of fact arrived at by the judge who had

the advantage of seeing the witness in an order of acquittal.

Generally, the order of acquittal shall not be interfered with

because the presumption of innocence of the accused is

further strengthened by acquittal. The powers under Section

378 of the Code are not circumscribed as its powers while

hearing a revision application. In an appeal against acquittal,

the Hon'ble Apex Court has consistently held that unless the

judgment of acquittal is completely contrary to evidence,

palpably erroneous or a view could not have been taken by the

Court of competent jurisdiction keeping in view well settled

cannons of criminal jurisprudence, the appellate Court would

be reluctant to interfere in a judgment of acquittal. The

appellate Court will not interfere with the order of acquittal

rendered by the competent Court unless there are compelling

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and substantial grounds to overturn the judgment.

11. It is also apposite to refer to the decision rendered in

case of Bhupatbhai Bachubhai Chavda and Anr. Vs. State

of Gujarat reported in [2024] 4 S.C.R. 322. Relevant

paragraphs of the judgment read as under:

"6. It is true that while deciding an appeal against acquittal, the Appellate Court has to re-appreciate the evidence. After re- appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on evidence on record. Perusal of the impugned judgment of the High Court shows that this question has not been adverted to. Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well-settled principle that an order of acquittal further strengthens the presumption of innocence of the 326 [2024] 4 S.C.R. Digital Supreme Court Reports accused. After having perused the judgment, we find that the High Court has not addressed itself on the main question.

7. The second error the High Court committed is found in paragraph 23 of the impugned judgment. The High Court has gone to the extent of recording a finding that the appellants have failed to adduce evidence in their support, failed to examine the defence witness and failed to establish falsity of the prosecution's version. This concept of the burden of proof is entirely wrong. Unless, under the relevant penal statute, there is a negative burden put on the accused or there is a reverse onus clause, the accused is not required to discharge any burden. In a case where there is a statutory presumption, after the prosecution discharges initial burden, the burden of rebuttal may shift on the accused. In the absence of the statutory provisions as above, in this case, the burden was on the prosecution to prove the guilt of the accused beyond a reasonable doubt. Therefore, the High Court's finding on the burden of proof is completely erroneous. It is contrary to the law of the land.

....

11. Therefore, the appeal must succeed. We set aside the judgment and order dated 14th December 2018 of the High Court and set aside the conviction of the appellants. The judgment and order dated 5th July

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1997 of the Trial Court is restored. The appeal is, accordingly, allowed. The bail bonds of the appellant no.2 are cancelled. The appellant no.1 shall be forthwith set at liberty unless he is required to be detained in connection with any other case."

12. It is a cardinal principle of criminal jurisprudence that in

an acquittal appeal if other view is possible, then also, the

appellate Court ought not to substitute its own view by

reversing the acquittal into conviction, unless the findings of

the trial Court are perverse, contrary to the material on record,

palpably wrong, manifestly erroneous or demonstrably

unsustainable. In the instant case, the learned APP for the

applicant has not been able to point out to us as to how the

findings recorded by the learned trial Court are perverse,

contrary to material on record, palpably wrong, manifestly

erroneous or demonstrably unsustainable.

13. It is to be observed that while dealing with the judgment