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Gujarat High Court
State Of Gujarat vs Balvantbhai Bhikhabhaii Kumbhar on 27 February, 2026
NEUTRAL CITATION
R/CR.A/101/2001 CAV JUDGMENT DATED: 27/02/2026
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Reserved On : 13/02/2026
Pronounced On : 27/02/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 101 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
BALVANTBHAI BHIKHABHAII KUMBHAR & ORS.
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Appearance:
UTKARSH SHARMA APP for the Appellant(s) No. 1
MR JM BUDDHBHATTI(1239) for the Opponent(s)/Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
and
HONOURABLE MR.JUSTICE P. M. RAVAL
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE P. M. RAVAL)
1. State has preferred the present appeal challenging the
judgment and order of acquittal dated 20.11.2000, passed by the
learned Sessions Judge of Bhavnagar in Sessions Case No.
119/1998, whereby the original accused-respondents herein
were acquitted of the offense punishable under Section 302 read
with Section 34 of the Indian Penal Code.
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2. The facts of the prosecution, as it reveals from the record,
in nutshell, are as follows:-
2.1 Deceased is the tenant of the accused. For vacating the
house, the accused threatened the deceased. The deceased had
also filed Suit in the Court against the mother of the accused
No.1. That on the date of incident i.e., on 23.03.1998 in morning
at about 6 o'clock, the accused No.1 poured kerosene on the
body of the deceased Nirmalaben who was sleeping in the
Veranda of the rented house. That one out of accused Nos. 2 and
3 lightened the match box and thus, burnt the deceased
Nirmalaben. She was taken to the hospital where she
succumbed to the burn injuries.
2.2 After completion of the investigation, the police filed the
charge sheet punishable under Section 302 of the IPC before the
concerned jurisdictional Magistrate. Since the case was sessions
triable, the same was committed to the learned Sessions Court
under the provisions of Section 209 of the CrPC. Vide Exhibit 7,
charges were framed against the present respondents, and their
plea were recorded wherein they pleaded not guilty to the charge
and claimed to be tried.
2.3 The prosecution, in order to bring home the charges, has
examined 23 witnesses as well as various documentary evidence;
2.4 After completion of trial and recording the further
statement of accused under section 313 of the CRPC, and after
giving opportunity of hearing to both the respective
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advocates/parties, Sessions Court by way of impugned judgment
acquitted respondents - original accused for the offense
punishable under section 302 read with Section 34 of the Indian
Penal Code. Hence, the present Appeal.
3. Learned APP Mr. Utkarsh Sharma for the State submits
that:-
3.1 That the Learned Trial Judge has not properly appreciated
that the dying declarations at Exh. 3, 52-54 and 94 are
consistent with each other on material particulars. All the three
authorities, namely PSI Parmar, Executive Magistrate Shri R.M.
Sumra and Dr. R.B. Mandaliya, have supported the case of the
prosecution and there is no material contradiction in their
evidence at Exh. 36, 50 and 49. The Learned Trial Judge ought
to have relied upon the same.
3.2 Over and above the above dying declarations, the evidence
of witness Kiritbhai Mavjibhai Mistry at Exh. 47 and the
evidence of the son of the deceased Jagdishbhai Ratilal at Exh.
64 clearly state that the deceased had given oral dying
declaration before them and she has clearly given the name of
the accused as her assailants.
3.3 That the Learned Trial Judge has given undue importance
to minor discrepancies and omissions in the evidence of
prosecution witnesses, which do not go to the root of the matter.
Such minor contradictions are natural and do not affect the core
of the prosecution case.
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3.4 That the Learned Trial Judge has not properly appreciated
the motive of the accused persons. The prior quarrel between the
parties and filing of Regular Civil Suit No. 155 of 1998 at Exh. 65
clearly show existence of enmity, which supports the prosecution
case.
3.5 That the Learned Trial Judge has erred in granting benefit
of doubt to the accused persons without any substantial reason.
The findings recorded in the impugned judgment are contrary to
the evidence on record and therefore the order of acquittal
deserves to be quashed and set aside.
4. Per contra, learned advocate Mr. J.M. Buddhbhatti for the
accused/respondents herein submitted that
4.1 That the impugned judgment and order of acquittal passed
by the Learned Trial Judge is just, legal and proper and has
been passed after full and correct appreciation of the oral as well
as documentary evidence on record.
4.2 That the prosecution has failed to prove the case against
the accused persons beyond reasonable doubt and therefore the
Learned Trial Judge has rightly extended the benefit of doubt in
favour of the accused persons.
4.3 That the alleged dying declarations are not wholly reliable
and are free from suspicion. The prosecution has failed to
establish that the same were recorded in strict compliance with
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law and in a fit mental condition of the deceased, and therefore
the Learned Trial Judge has rightly not placed reliance upon
them.
4.4 That there are material contradictions, omissions and
improvements in the evidence of the prosecution witnesses,
which goes to the root of the case and create serious doubt
about the prosecution version. The Learned Trial Judge has
rightly considered these infirmities.
4.5 That the alleged oral dying declarations before the
witnesses are not corroborated by independent and reliable
evidence and therefore cannot form the sole basis for conviction.
4.6 That the existence of prior enmity between the parties, as
reflected from the civil dispute, creates possibility of false
implication of the accused persons.
4.7 That the findings recorded by the Learned Trial Judge are
based on proper appreciation of evidence and settled principles
of criminal jurisprudence. No perversity, illegality or miscarriage
of justice is shown so as to warrant interference by the appellate
court.
4.8 That the present appeal being devoid of merits deserves to
be dismissed.
5. Heard Learned Advocates for the respective parties. We
have perused the record and proceedings of the case, and goes
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through the impugned judgment.
6. At the outset, the principles governing while deciding the
appeal from acquittal were summarized in the case of Mallappa
and others Vs. State of Karnataka (2024 INSC 104) are required
to be kept in mind which are as under:-
(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
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.
7. If the impugned judgment is tested on the anvil of aforesaid
principles, it would be evident that the view taken by the trial
court is legal and plausible for the following reasons:
(1) PW 11 - Swaroopsinh Amarsinh Parmar, examined vide Exh.
36, before whom the deceased had lodged the complaint 10
minutes prior to her death. On re-appreciation of the entire
deposition of this witness, however, considering Exh. 70, based
on which the witness approached the hospital to record the FIR.
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The said Exh. 70 states that Dr. R B Mandaliya, Medical Officer,
SIR T Hospital, stated on oath that 8:15 hours that the wife of
Ratilal Parmar, namely Nirmalaben, aged about 44 years,
resident of Vadva, Kachiyavadi, Bhavnagar, was brought by
Rameshbhai to the emergency burn ward as she was set ablaze
at her residence. However, considering the deposition of Dr.
Rasiklal Bhavchandbhai at Exh. 15, he states that on
23.08.1998 Nirmalaben was brought before him and she
informed that Jagubhai Balvantbhai and Balvantbhai
Bhikhabhai had tried to set her ablaze with kerosene at 6 o'clock
in the morning, which was recorded in the case papers, and
pursuant thereto, it was informed to the Hospital Chowki and
thereafter the responsible officer arrived and started the
formalities. The Doctor, in his cross-examination, admitted that
on 28.03.1998 at 8 o'clock in the morning his duty hours were
completed and he did not inform the police at 8:15 hours in the
morning. However, as per the Police Yadi, the Doctor informed at
8:25 hours. At this juncture, it is evident to note that before the
Doctor, in the case papers, history was recorded as to who set
her ablaze; however, the Yadi does not reflect the same and is
thus silent on the aspect as to who set her ablaze. Not only that,
the Yadi at Exh. 14 does not reflect any such aspect of injuries.
(2) There is no entry in the Medico-Legal Case (MLC). PW 15 -
Rasiklal Bhavchandbhai, examined at Exh. 49, has produced on
record the MLC Register. No such entry is reflected in the MLC
Registry, coupled with the fact that the indoor case registry at
Exh. 60 is prepared from rough papers, and not a single page
bears any seal or certificate of the hospital, nor is there any page
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numbering in the said register. Neither the said register is
printed, nor the signatures do appear in the register. Thus, the
case papers also create serious doubt.
(3) PW 15 - Rasiklal Bhavchandbhai, examined at Exh. 49,
states that in column no. 1, the signatures are those of some
police constables and not of the doctor. How, then, can a police
officer sign the case papers, particularly in columns relating to
treatment and the food to be given to the patient? Thus, the
medical papers also create serious doubt.
(4) On perusal of the entire deposition of PW 14 - Kiritbhai
Mavjibhai Mistri at Exh. 47, it is evident that he is not an
eyewitness. The alleged dying declaration made before this
witness states that while the deceased was sleeping in the
balcony, Balavantbhai, along with his two sons, namely Haresh
and Jagdish, came; Balavantbhai was holding kerosene in his
hand, and one of the two sons lit the fire and set the deceased
ablaze. Consequently, the deceased shouted, and upon hearing
the sound, Rameshbhai and Sushilaben reached the spot, called
an ambulance, and brought the deceased to the Government
Hospital. However, how this witness knows about the incident is
not on record. Thus, the deposition of this witness also creates
serious doubts.
(5) PW 16 - Executive Magistrate Ranabhai Meghjibhai Sumra,
examined vide Exh. 15, recorded the dying declaration at 8:55
hours. According to this witness, he asked the doctor for the
name of the patient and also confirmed that the patient was
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conscious. The dying declaration at Exh. 52 states that Haresh
and Jagdish both had lit a matchstick. The said dying
declaration bears the thumb impression of the deceased,
Nirmalaben. It is also relevant that the son of the deceased,
Raju, who was sleeping inside the room, has not been examined.
Neither Raju, Rameshbhai, nor Sushilaben have been examined,
particularly when Raju was sleeping in the room and
Rameshbhai and Sushilaben reached the spot only after hearing
the sound, according to the prosecution's case.
(6) Kiritbhai, son of the deceased, examined vide Exh. 47,
deposed that he asked his mother what had happened, to which
she replied that Balavantbhai, along with his two sons, poured
kerosene and set her ablaze. However, she did not specify who
poured the kerosene and who set her ablaze with matchsticks. It
is also relevant to note that, according to the prosecution's case,
the information at an earlier point in time was given to the head
constable on hospital duty. As per the deposition of the medical
officer, even the investigating officer knew that the duty
constable had taken the necessary steps to record the dying
declaration when he came to the hospital to investigate and
record the FIR. However, nothing on record clarifies what was
recorded by the hospital duty constable, nor has he been
examined as a witness in any case.
(7) From the deposition of PW 1 - Nathabhai Premjibhai
Katariya, examined vide Exh. 16, who conducted the post-
mortem of the deceased, it is evident that in his cross-
examination he admitted that if a person is sleeping and
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kerosene is poured, the foot and palm can also get burnt.
However, this is not consistent with the prosecution's case. At
column no. 17 of the report at Exh. 18, it is noted that the foot of
the deceased's body was burnt. The doctor further admitted that
the deceased must have been standing when the incident took
place. Under such circumstances, the claim that the deceased
was sleeping when the accused poured kerosene creates serious
doubt regarding the prosecution's version.
(8)It is also relevant that the doctor who treated the deceased,
his statement recorded is not during the investigation and has
not been cited as a witness in the present case. The
discrepancies in the dying declaration recorded during the FIR
registration, before the Trial Judge, and before witnesses
including the son of the deceased do not inspire confidence. In
this context, there are material discrepancies regarding the facts
of the incident, namely, who lit the fire and the post-mortem
observation that the deceased must have been standing during
the incident. These factors create serious doubt regarding the
veracity of the prosecution's case and the reliability of the dying
declaration.
8. Even otherwise, in Irfan@ Naka Vs. State of Uttar
Pradesh (AIR 2023 SC 4129), the Hon'ble Supreme Court
has observed that that in a medical scenario, two stages viz.
Conscious and fit state of mind are distinct and are no
synonymous. One may be conscious, but not necessarily in a
fit state of mind. In the case on hand there is no iota of
evidence to prove that deceased was in a fit state of mind
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tough conscious.
9. When the High Court concur with the findings given by
the Trial Court, it is not necessary to give separate detailed
reasoning, under such circumstances, it would be profitable
to refer the judgment of the Hon'ble Supreme Court in the
case of State of Karnataka Vs. Hemareaddy, reported in
AIR 1981 SC 1417, wherein it is held as under:-
"...This Court has observed in Girija
Nandini Devi V. Bigendra Nandini
Chaudhary (1967) 1 SCR 93: (AIR 1967 SC
1124) that it is not the duty of the Appellate
court on the evidence to repeat the narration
of the evidence or to reiterate the reasons
given by the Trial Court expression of
general agreement with the reasons given by
the Court the decision of which is under
Appeal, will ordinarily suffice."
10. In the present case, whether the deceased is in fit state
of mind is not coming on record. For the reasons stated
hereinabove, serious doubt is created in the case of the
prosecution, more particularly, the dying declaration does
not repose confidence nor does get any corroboration from
any independent witness by way of any clinching evidence
but the evidence on record creates serious doubt. Under
such circumstances, when two views are possible, the view
taken by the Sessions Judge while acquitting the accused,
being a plausible view, the same cannot be replaced by the
view of this Court merely because another view is
permissible. More particularly, when the reasons recorded by
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the learned Sessions Judge while acquitting the accused are
in consonance with the legal principles and the appreciation
of evidence in its totality, and under such circumstances,
this Court, while hearing the appeal, cannot disturb the
finding of the learned Sessions Court, more particularly for
the reasons stated hereinabove.
11. Thus, we concur with the reasons recorded by the learned
Sessions Judge while acquitting original accused and find no
error whatsoever, under such circumstances, we do not find it fit
to entertain the acquittal appeal and therefore, the same is
hereby rejected.
12. In view of the same, the present appeal stands dismissed,
bail bonds are cancelled, surety is discharged. Record and
proceedings to be sent back to the concerned court forthwith.
(MAULIK J.SHELAT,J)
(P. M. RAVAL, J)
MMP
