[Cites 13, Cited by 0]
Gujarat High Court
State Of Gujarat vs Samatbhai Raijibhai Bariya on 17 April, 2026
NEUTRAL CITATION
R/CR.A/642/2000 JUDGMENT DATED: 17/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 642 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
and
HONOURABLE MR.JUSTICE D.N.RAY
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Approved for Reporting Yes No
✔
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STATE OF GUJARAT
Versus
SAMATBHAI RAIJIBHAI BARIYA & ANR.
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Appearance:
MS MONALI BHATT, APP for the Appellant(s) No. 1
APPEARANCE WITHDRAWN for the Opponent(s)/Respondent(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s) No. 1
K T BELADIYA(9101) for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 17/04/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR)
1. Since during the pendency of the appeal, accused No.1-
Samatbhai Raijibhai Bariya expired on 03.09.2024, the present
appeal stands disposed of as abated qua the accused No.1.
2. This appeal is directed under Section 378 of the Code of
Criminal Procedure (hereinafter referred to as "the Code" for
short) against the judgment and order of acquittal dated
28.07.1999 passed by the learned Sessions Judge, Panchmahals
at Godhra, in Sessions Case No.68 of 1999, whereby the learned
Sessions Court acquitted the respondents for the offence
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punishable under Sections 302, 427, 504, 506(2) read with
Section 34 of the Indian Penal Code, 1860.
3. The following noteworthy facts emerge from the record of
the appeal:
3.1 The prosecution case, in brief, is that the accused persons
and the deceased, Chandubhai Vitabhai, were residents of village
Bhalaniya, Taluka Godhra. As per the prosecution, accused No.
1, Samatbhai Raijibhai, had been maintaining an illicit
relationship with Maniben, the wife of the deceased Chandubhai,
for the past several years. Because of this, the deceased
Chandubhai would often reprimand accused No. 1 and ask him
to mend his ways. According to the prosecution, on 03.12.1998
at around 9:00 p.m., when the complainant Himmatbhai
Sukhbhai and his son Chandubhai were present at their house
in village Bhalaniya, both the accused came there hurling filthy
abuses. They shouted that Chandubhai should come out, that
they would finish him, and that they would keep his wife
Maniben as their own. Thereafter, both the accused dragged
Chandubhai, who was sitting on a cot in the verandah, from the
house to a short distance outside in the courtyard. At that time,
accused No. 1 Samatbhai was carrying a plastic can containing
kerosene, which he poured over the body of Chandubhai.
Accused No. 2 Ratilal Raaijibhai caught hold of Chandubhai, and
accused No. 1 then lit a matchstick and set Chandubhai on fire.
3.2 As a result, Chandubhai sustained severe burn injuries
and started shouting. Hearing the commotion, the complainant
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Himmatbhai, his wife Raiben, and nearby persons rushed to the
spot, upon which both the accused fled. The fire was
extinguished by covering Chandubhai with blankets, and he was
taken in a rickshaw to the Government Hospital at Godhra for
treatment. Initially, a complaint was lodged by Himmatbhai
Sukhbhai with the police under Sections 307, 506(2), 504, etc. of
the Indian Penal Code. However, during the course of treatment,
Chandubhai died on 10.12.1998, and therefore, the offence
under Section 302 of the Indian Penal Code (murder) was added.
After completion of investigation, charge-sheet came to be filed.
At the conclusion of the trial, the learned trial Court acquitted
the respondents - accused vide judgment and order dated
28.07.1999 passed in Sessions Case No.68 of 1999.
3.3 Being aggrieved by the same, the appellant - State
preferred present the appeal under Section 378 of the Code of
Criminal Procedure, 1973.
4. Heard learned APP appearing for the appellant-State of
Gujarat. Though duly served, none appears for respondent No.2.
5. The learned Additional Public Prosecutor submits that the
learned Sessions Judge has committed a grave error in
appreciation of the evidence on record. It is contended that
though the name of the accused appears in the dying
declaration, the learned trial Court has erroneously failed to
place reliance upon the said dying declaration. It is further
submitted that the prosecution has successfully established the
case against accused No. 2 regarding his active involvement in
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the commission of the offence. The evidence on record clearly
indicates that accused No. 2 had caught hold of the deceased,
while accused No. 1 had poured kerosene over the deceased and
set him on fire. The learned APP has drawn attention to the
evidence of the Executive Magistrate (Exh. 13), who has
categorically deposed that at the time of recording the dying
declaration, the deceased was in a fit mental condition. Upon
receipt of the yadi from the police, the dying declaration was
recorded, which is produced at Exh. 14 and duly proved in
accordance with law. The said dying declaration clearly reveals
that on 03.12.1998, accused Ratilal Raijibhai had caught hold of
the deceased, and accused Samat Raiji Patel had poured
kerosene and set him ablaze. It is, therefore, submitted that the
aforesaid material establishes prima facie involvement of the
accused. The medical evidence on record further corroborates
the prosecution case and proves the factum of the incident.
5.1 The learned APP further submits that accused No. 1 (since
deceased during the pendency of the appeal) was having an illicit
relationship with the wife of the deceased Chandubhai, thereby
establishing a clear motive for the commission of the offence.
However, the learned Sessions Judge has failed to appreciate
this important aspect and has erroneously acquitted the
accused. In view of the aforesaid submissions, it is prayed that
the present appeal be allowed and the impugned judgment and
order of acquittal be quashed and set aside, and the accused be
convicted in accordance with law.
6. Except above, no other or further submissions, contentions
and grounds have been made/raised by both the learned APP.
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7. Scope and interference by the appellate Court in acquittal
appeal is very limited. The Hon'ble Supreme Court has discussed
the scope and interference in acquittal appeal in the case of
Sheo Swarup v. King Emperor, AIR 1934 PC 227 and held as
under:-
"While dealing with an appeal against acquittal, the High
Court should and will always give proper weight and
consideration to such matters as-
(1) the views of the trial Judge as to the credibility of the
witnesses;
(2) the presumption of innocence in favour of the accused,
a presumption certainly not weakened by the fact that he
has been acquitted at his trial;
(3) the right of the accused to the benefit of any doubt;
and
the slowness of an appellate court in disturbing a finding of
fact arrived at by a Judge who had the advantage of seeing
the witnesses."
7.1 Further, considering the law laid down in the case of Babu
Sahebagouda Rudragoudar v. State of Karnataka, 2024 SCC
OnLine SC 561, every criminal trial starts with general
presumption and one of the cardinal principle of criminal
jurisprudence is that, there is a presumption of innocence in
favour of the accused, unless proven guilty. Burden of proving
the case of the prosecution always rests on the shoulder of the
prosecution. As a consequence, the onus on the prosecution
becomes more burdensome as there is a double presumption of
innocence, which gathers strength before the appellate Court.
7.2. It would be further apposite to refer the decision of the
Hon'ble Apex Court in case of Jafarudheen v. State of Kerala,
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(2022) 8 SCC 440:
"While dealing with an appeal against acquittal by invoking
Section 378 CrPC, the appellate court has to consider
whether the trial court's view can be termed as a possible
one, particularly when evidence on record has been
analysed. The reason is that an order of acquittal adds up to
the presumption of innocence in favour of the accused. Thus,
the appellate court has to be relatively slow in reversing the
order of the trial court rendering acquittal. Therefore, the
presumption in favour of the accused does not get weakened
but only strengthened. Such a double presumption that
ensures in favour of the accused has to be disturbed only by
thorough scrutiny on the accepted legal parameters."
8. Having heard the learned APP appearing for the State and
having gone through the evidence produced on record, it appears
that the complaint was lodged by Himmatbhai Sukhabhai, who
is the father of the deceased. As per the prosecution case,
accused No. 1 was allegedly having an illicit relationship with the
wife of the deceased, and on account of the said grievance, the
incident in question occurred. It is alleged that accused No. 1,
Samatbhai Raijibhai Bariya, poured kerosene over the deceased
and set him on fire, while accused No. 2 caught hold of the
deceased. However, all the material witnesses, including the
complainant and the close relatives of the deceased, namely
Himmatbhai Sukhabhai (father), Rayliben Himmatbhai (mother),
as well as independent witnesses such as Jadiben Dalabhai and
Dadamben Ramabhai (neighbors) have turned hostile and have
not supported the case of the prosecution.
9. Insofar as motive is concerned, the complainant himself, in
his cross-examination, has admitted that there existed cordial
relations between the deceased and his wife and that there was
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no illicit relationship with any person. Thus, the prosecution has
failed to establish the alleged motive. With regard to the
allegations under Sections 427, 504, and 506(2) of the Indian
Penal Code, there is no iota of evidence on record to substantiate
the offences of mischief or criminal intimidation.
10. The prosecution has mainly relied upon the dying
declaration (Exh. 14). On perusal of the evidence, it transpires
that the prosecution examined Dr. Maksood at Exh. 8, who had
treated the deceased and sent a yadi to the police. The medical
case papers (Exh. 10) indicate that the deceased had sustained
approximately 80% homicidal burns. In the history recorded
therein, it is mentioned that accused No. 1 had poured kerosene
and set the deceased on fire; however, there is no reference to
accused No. 2.
11. It appears that the specific allegation against accused No. 2
is that he had caught hold of the deceased, but the prosecution
has failed to establish his involvement. Even in the history
recorded before the doctor, no role is attributed to accused No. 2.
Further, on careful scrutiny of the dying declaration (Exh. 14), it
appears that there is no endorsement regarding the fitness or
mental condition of the deceased at the time of recording the
statement. Although the Executive Magistrate has been
examined, the absence of such certification creates doubt about
the reliability of the dying declaration. Moreover, the deceased
survived for six days after the incident, yet no further statement
implicating accused No. 2 was recorded.
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12. In absence of corroborative evidence, particularly when all
the eye-witnesses and close relatives have turned hostile,
reliance solely on such an uncorroborated and doubtful dying
declaration would be unsafe for recording conviction.
13. Considering the aforesaid facts, and particularly the
limited role attributed to accused No. 2 only of allegedly catching
hold of the deceased, which is not supported even in the medical
history, this Court is of the view that the prosecution has failed
to prove the case beyond reasonable doubt. In light of the
evidence of Dr. Maksood and the overall material on record, no
case is made out for interference with the judgment of acquittal
passed by the learned trial Court.
13.1 The settled principle of criminal jurisprudence is that the
prosecution must stand on its own legs and prove the charge
beyond reasonable doubt. The investigating agency cannot pick
and choose only such evidence as may help in securing
conviction. In this regard, reference is also required to be made
to Gulam Mehmood A. Maliek v. State of Gujarat, AIR 1980
SC 1558 wherein it has been held that if two views are possible
from the evidence on record, the view favourable to the accused
is required to be accepted.
14. In view of the above and in backdrop of the evidence
adduced/produced by the prosecution, material contradictions
which goes to the root of the case of the prosecution are noticed
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by the Sessions Court and as the prosecution failed to prove the
case against the accused beyond all reasonable doubts, learned
Sessions Court has not committed any error in acquitting the
accused.
15. Accordingly, present appeal fails and is hereby dismissed.
The judgment and order of acquittal passed by learned Sessions
Judge, Panchmahals at Godhra, stands confirmed. Bail bond, if
any, given by respondents- accused stands discharged. Record
and proceedings be sent back to the concerned trial Court
forthwith.
(HASMUKH D. SUTHAR,J)
(D.N.RAY,J)
ALI
