Gujarat High Court

State Of Gujarat vs Dhansingbhai Saliyabhai Harijan on 23 June, 2025

Author: Vaibhavi D. Nanavati

Bench: Vaibhavi D. Nanavati

                                                                                                                        NEUTRAL CITATION




                            R/CR.A/610/2001                                         JUDGMENT DATED: 23/06/2025

                                                                                                                        undefined




                                 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                          R/CRIMINAL APPEAL NO. 610 of 2001


                       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
                                         DHANSINGBHAI SALIYABHAI HARIJAN & ANR.
                       =============================================
                       Appearance:
                       MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
                       HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1,2
                       MR. YOGENDRA THAKORE(3975) for the Opponent(s)/Respondent(s) No. 1,2
                       =============================================

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

                                                         Date : 23/06/2025

                                                         ORAL JUDGMENT

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

1. The present appeal under Section 378 of the Code of

Criminal Procedure, 1973 is directed against the judgment and

order of acquittal passed by the Court of learned Sessions

Judge, Panchmahals at Dahod Camp in Sessions Case

NEUTRAL CITATION

R/CR.A/610/2001 JUDGMENT DATED: 23/06/2025

undefined

No.149/2000 dated 20.03.2001 for offence punishable under

Sections 307, 498A read with Section 114 of the Indian Penal

Code, 1860.

2. Briefly stated, the case of prosecution is that the present

respondent - accused No.1 Dhansing Saliyabhai is the husband

of the prosecutrix - Lilaben. The respondent No.1 herein -

original accused No.1 was in illicit relationship with the

respondent No.2 - Shanudiben to which, the prosecutrix had

objected. Resultantly, the accused was mentally and physically

torturing the prosecutrix. On 27.03.2000, at 20:00 hours in the

night, the accused with an intention to commit his wife's

murder, sprinkled kerosene on her, lighted a match-stick and

set her on fire because of which, she received serious burn

injuries.

2.1 A complaint came to be registered by the prosecutrix

before the I/c PSI, Limdi Police Station on 28.03.2000. The

investigation was carried out and chargesheet was submitted

in the court of Ld. Judicial Magistrate, Jalod. As the case was

triable by Sessions Court, the same was committed to the

Sessions Court, Dahod.

NEUTRAL CITATION

R/CR.A/610/2001 JUDGMENT DATED: 23/06/2025

undefined

2.2 The Prosecution has produced the following documentary

and oral evidence.

Documentary Evidences

Mark-5/1 Original complaint of Prosecutrix - Lilaben Exh-10 Mark-5/2 Panchnama of the place of offense Exh-21 Mark-5/3 Certificate of Medical Officer, Dahod issued Exh-07 regarding treatment of Prosecutrix- Lilaben Mark-5/4 Dispatch Note of forwarding the muddamal to FSL Exh-17 Mark-5/5 Certificate of Authority Exh-18 Mark-5/6 Acknowledgment receipt of muddamal received in Exh-19 FSL

-: Oral Evidence :-

Witness No.1 Dr. Babulal Badriprasad Mittal - Medical Officer Exh-06 Witness No.2 Lilaben Dhansingbhai - Prosecutrix and victim Exh-09 Witness No.3 Bhanuben Ravibhai - witness and daughter of Exh-11 the victim Witness No.4 Prahladbhai Dhansingbhai - son of the victim - Exh-12 witness Witness No.5 Madiben Sadiyabhai - witness Exh-13 Witness No.6 Madansinh Dulesinh Puvar - Investigating Exh-16 Officer Witness No.7 Kalubhai Hamsing Bilwal - Panch witness Exh-20 Witness No.8 Prabhatsinh Himmatsinh Bariya - Head Exh-22 Constable Witness No.9 Shantilal Kalabhai Garasiya - Investigating Exh-23 Officer

2.3 At the end of trial, further statements of the accused

under Section 313 of the Code of Criminal Procedure, 1973

were recorded in which, the respondents - accused pleaded

not guilty and stated that, they had been falsely implicated in

NEUTRAL CITATION

R/CR.A/610/2001 JUDGMENT DATED: 23/06/2025

undefined

the offence. Considering the arguments of both the sides, the

learned Additional Sessions Judge, Panchmahals at Dahod

Camp, vide judgment and order dated 20.03.2001 acquitted

the respondents - accused for the charges levelled under

Sections 307, 498A and 114 of the Indian Penal Code. The

aforesaid has given rise to the filing of the present appeal by

the prosecution.

3. Heard Ms. Jirga Jhaveri, learned Additional Public

Prosecutor appearing for the appellant and Mr. Yogendra

Thakore, learned advocate appearing for the respondents -

accused.

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

- State relied on the grounds raised in the appeal and

submitted that, the impugned judgment is required to be

interfered with and quashed and set aside.

5. Mr. Yogendra Thakore, learned advocate appearing for

the respondents - accused submitted that, the impugned

judgment requires no interference mainly, relying on the

principle of law laid down by the Court from time to time that,

once the view taken by the competent Court is a plausible

NEUTRAL CITATION

R/CR.A/610/2001 JUDGMENT DATED: 23/06/2025

undefined

view, this Court should not interfere; and secondly that, the

case is that of no evidence wherein, the prosecution witnesses

have not supported the case of prosecution except, the

prosecutrix - Lilaben. It is submitted that, in absence of any

evidence on record, no interference is called for in the

impugned judgment rendered by the competent Court.

6. Having heard the learned advocates appearing for the

respective parties, having considered the evidence on record

thread bare and the impugned judgment passed by the

competent Court, the following emerge:

6.1 The accused No.1 - Dhansing Saliyabhai is the husband

of the prosecutrix - Lilaben, a Harijan villager of Mouje:Limdi.

He is allegedly in relationship with the accused No.2 -

Shanudiben @ Shantaben. The prosecutrix - Lilaben, who is

wife of Dhansing Saliyabhai - accused No.1, used to stop him

from time to time, resultantly, she was tortured mentally and

physically abused by the accused No.1. Harboring grudge

against her, with an intention to kill her, the accused sprinkled

kerosene on her body, lit match-stick and set her ablaze. The

prosecutrix - Lilaben was seriously injured and if the

prosecutrix - Lilaben would have died, it would have amounted

NEUTRAL CITATION

R/CR.A/610/2001 JUDGMENT DATED: 23/06/2025

undefined

to her murder and by the aforesaid act, by aiding each other,

the accused had allegedly committed offence under Sections

307, 498A and 114 of the Indian Penal code.

6.2 On perusal of evidence, it emerges that the PW-1 - Dr.

Babulal Mittal, whose deposition is at Exh.6, has accepted in

his deposition that the injury could have been either homicidal

or it could have been suicidal in nature. The said certificate

dated 04.09.2000 is produced at Exh.7.

6.3 It emerges that, the incident occurred on 27.03.2000 at

8:00 pm at night and the complaint came to be registered on

28.03.2000 at 12:45 hours below Exh.10. Despite the presence

of prosecutrix's son, daughter and the residents of faliya at the

scene of incident, none of these witnesses reported the matter

or filed complaint with the police until noon on the following

day. There is no explanation either from the prosecution or the

prosecutrix for the delay. On 04.09.2000, the prosecutrix -

Lilaben was referred to S.S. Hospital for plastic surgery.

6.4 Considering the evidence on record, it emerges that

there is no evidence that, the prosecutrix was tortured by the

accused. Though the residents of Falia had gathered, they

NEUTRAL CITATION

R/CR.A/610/2001 JUDGMENT DATED: 23/06/2025

undefined

were not examined as independent witnesses.

6.5 The prosecution had examined prosecutrix - Lilaben

below Exh.9, whose evidence was not supported either by her

daughter - Bhanuben who had deposed below Exh.11 or her

son Prahalad who had deposed below Exh.12 or Maliben below

Exh.13 who is the mother-in-law, who were all declared as

hostile. No other witnesses were examined by the prosecution.

There is no dispute to the fact that, the prosecutrix - Lilaben

had suffered burns, which was established beyond doubt. From

perusal of the record, it emerges that, there is contradiction in

the complaint filed by Lilaben and her deposition.

6.6 The learned competent Court in para 13 of its judgment

had rightly observed that, there is no clarity with respect to the

occurrence of the actual incident. On one hand, Lilaben - PW-2

deposes below Exh.9 that, at about 8:00 O'clock in the night,

her husband - Dhansing bhai came to house asking her to

serve him food however, the same was refused by Lilaben

stating that, the amount received out of the labour work by

Dhansing bhai was not given to the prosecutrix and that, the

accused no.1 was in illicit relationship with Shanudiben -

accused No.2. That, both of them came into the house and set

NEUTRAL CITATION

R/CR.A/610/2001 JUDGMENT DATED: 23/06/2025

undefined

prosecutrix - Lilaben ablaze.

6.6.1 In the complaint, the aforesaid is not stated by the

prosecutrix. The aforesaid is also recorded by the competent

Court at internal page 18 of the impugned judgment and the

competent Court had rightly arrived at a finding of fact that,

there is no clarity with respect to the actual incident.

6.7 The panch witness - Kalubhai Hamsing Bilval, who is

examined below Exh.21, had not supported the case of

prosecution. Madansinh Dulesing Puvar who is examined below

Exh.16 and Shantilal Kalabhai Garasiya who is examined below

Exh.23, do not lend any credence to the case of the

prosecution. It is established from Exhs.17, 18 and 19 that, the

muddamal which comprised of samples of earth containing

kerosene, control earth and prosecutrix - Lilaben's clothes

which were all seized from the place of offence, were

dispatched to FSL to primarily ascertain the presence or

oudour of kerosene however, no such FSL report is placed on

record. While it is not in dispute that the prosecutrix was

injured by burns, in our opinion, even considering the case of

the prosecution as it is with respect to the presence of

kerosene in the earth at the place of incident and clothes of

NEUTRAL CITATION

R/CR.A/610/2001 JUDGMENT DATED: 23/06/2025

undefined

the prosecutrix- Lilaben, the prosecution has failed to prove

the charges levelled against the accused beyond reasonable

doubt so as to hold the accused guilty under Sections 307,

498A and 114 of the Indian Penal Code.

7. While examining a case under Section 307 of the Indian

Penal Code, the Court is required to see whether the act,

irrespective of result was done with an intention or knowledge

and circumstances mentioned in the said section. The intention

or knowledge of accused must be such as necessary to

constitute a murder. Without such ingredient being

established, there can be no offence of attempt to murder.

7.1 For an offence to be committed under Section 498A of

the Indian Penal Code, it is required to establish that the

husband or relative of husband subjects a woman to cruelty.

7.2 Section 114 of the Indian Penal Code, it is necessary to

first make out the circumstances which constitute abetment so

that, if absent, the accused would have been liable to be

punished as an abetter and then to show that, he was also

present when the offence was committed. The abetment must

have been complete apart from the presence of the abetter.

NEUTRAL CITATION

R/CR.A/610/2001 JUDGMENT DATED: 23/06/2025

undefined

8. In the facts of the present case, on perusal of evidence

on record and deposition of the witnesses, no interference is

called for in the impugned judgment rendered by the

competent Court.

9. At this stage, it is 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

NEUTRAL CITATION

R/CR.A/610/2001 JUDGMENT DATED: 23/06/2025

undefined

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 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."

10. 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.

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