[Cites 21, Cited by 0]
Gujarat High Court
State Of Gujarat vs Salimbhai Mohmmadbhai Vora on 7 March, 2026
Author: A.Y. Kogje
Bench: A.Y. Kogje
NEUTRAL CITATION
R/CR.A/629/2003 JUDGMENT DATED: 07/03/2026
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 629 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
and
HONOURABLE MR.JUSTICE J. L. ODEDRA Sd/-
=======================================================================
Approved for Reporting Yes No
=======================================================================
STATE OF GUJARAT
Versus
SALIMBHAI MOHMMADBHAI VORA & ANR.
=======================================================================
Appearance:
MR HARDIK SONI, APP for the Appellant(s) No. 1
ADVOCATE NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2
JEET V PATEL(8653) for the Opponent(s)/Respondent(s) No. 1
=======================================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR.JUSTICE J. L. ODEDRA
Date : 07/03/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. The present appeal is preferred by the appellant-State
under Section 378 of the Code of Criminal Procedure, 1973 against
the judgment and order of acquittal dated 13.02.2003 passed by
Additional Sessions Judge, Fast Track Court, Nadiad in Sessions
Case No.155 of 2000. By the impugned judgment and order, the
Sessions Court acquitted the respondents-accused for offence
under Sections 498(A), 302, 504 read with Section 114 of the
Indian Penal Code.
NEUTRAL CITATION
R/CR.A/629/2003 JUDGMENT DATED: 07/03/2026
undefined
2. The brief facts of the case are that accused No.1-
Salimbhai Mohmmadbhai Vora is the husband of the deceased and
accused No.2-Amina Mohmmadbhai Vora is the mother in law of
the deceased. The deceased got married to accused No.1 three
years prior to the incident and a girl child aged about two years
was born out of the wedlock. It is alleged that a few days prior to
the incident, a quarrel took place between the parties and the
deceased was driven out of the matrimonial house due to which she
went to reside at her parental house at Tarapur. On 25.03.2000,
the deceased returned to her matrimonial house at about 3 p.m.
and that both the accused started quarrelling with her and asked
her to leave the house. Later, at about 8 p.m. in the evening, the
accused persons again asked her to leave the house and accused
No.2 dragged the deceased by grabbing her hair and then poured
kerosene upon her. Thereafter, accused No.1 lighted a matchstick
and set the deceased ablaze. Upon hearing cries of the deceased,
the neighbours gathered and she was taken for treatment to the
hospital wherein she lodged a complaint before the police and
thereafter, the deceased succumbed to the burn injuries.
3. Learned APP appearing for the appellant-state has
submitted that the order of acquittal passed by Additional Sessions
Judge, Fast Track Court, Nadiad in Sessions Case No. 155 of 2000
is against law and evidence on record.
NEUTRAL CITATION
R/CR.A/629/2003 JUDGMENT DATED: 07/03/2026
undefined
3.1. It is submitted that the trial Court has failed to
appreciate the evidence on record which clearly establishes that
the deceased had sustained burn injuries and had subsequently
succumbed to the said injuries.
3.2. It is also submitted that the trial Court has failed to
appreciate the evidence which indicates that the deceased was
subjected to cruelty by the accused persons as she did not bring
jewellery or cash from her parental house after the birth of the
child due to which she was asked to leave her matrimonial house.
3.3. It is further submitted that the panchnama of the place
of offence shows that an empty tin of kerosene was found in the
room where the incident took place and hair was also found stuck
on the wall which clearly corroborates the case of prosecution that
the incident took place inside the house of the accused.
3.4. It is also submitted that the trial Court has failed to
appreciate the dying declarations of the deceased and that the
complaint of the deceased recorded by the police inspector at the
hospital (Exh.43), the dying declaration recorded by Executive
Magistrate (Exh.41), and the history of injuries given before the
Medical Officer (Exh.30) are all in the nature of dying declarations
which are consistent with each other wherein the deceased has
stated that accused No.2 poured kerosene on her and that accused
NEUTRAL CITATION
R/CR.A/629/2003 JUDGMENT DATED: 07/03/2026
undefined
No.1 had set her on fire. Therefore, it is submitted that such a
dying declaration could form the basis of conviction without
independent corroboration.
4. As against this, learned Advocate on behalf of the
respondents-accused supported the impugned judgment and order
passed by the trial Court and has submitted that the trial Court has
rightly appreciated the oral and documentary evidence on record
and acquitted the accused persons.
4.1. It is further submitted that the prosecution has failed to
prove the allegations of cruelty under Section 498A of the IPC and
that the witnesses have not supported the case of the prosecution
and have deposed that the deceased was living happily with the
accused persons and that the accused persons had neither
demanded jewellery or cash from the deceased nor subjected her to
cruelty.
4.2. It is further submitted that even the eyewitnesses have
not supported the case of the prosecution that the accused persons
poured kerosene on the deceased and have instead deposed that
the deceased had accidentally sustained burn injuries.
4.3. It is further submitted that even the evidence on record
shows that accused No.1 had taken the deceased to the hospital
and had sustained burn injuries while attempting to save her.
NEUTRAL CITATION
R/CR.A/629/2003 JUDGMENT DATED: 07/03/2026
undefined
5. Having heard learned Advocates on behalf of both the
parties and having perused the record and proceedings, upon
perusal of the same, it appears that it is a case of three dying
declarations given by the deceased before three different
authorities, viz. Police, Executive Magistrate and the Doctor.
6. In order to prove the case against the respondents-
accused, the prosecution has examined the following witnesses:
Sr. Name of the witnesses PW No. Exh. No.
No.
6.1. The prosecution has also brought on record the
following documentary evidence:
Sr. No. Particular Exh. No.
NEUTRAL CITATION
R/CR.A/629/2003 JUDGMENT DATED: 07/03/2026
undefined
7. The Court has first taken into consideration the
complaint purportedly by the deceased-Rizvana dated 26.03.2000
at Exh.43 which bears thumb impression of the deceased. The
Court has thereafter taken into consideration the Postmortem
Report at Exh.37 particularly Column No.16, which reflects
position of fingers at the time of postmortem and it is indicated that
fingers were burnt, blackened and semi flexed. Therefore, the
thumb impression on the complaint becomes doubtful, thereby
creating doubt on the version itself, which is recorded in the
complaint.
8. The next aspect which the Court has taken into
consideration is the Dying Declaration at Exh.41. The procedure
for recording the Dying Declaration was initiated by Yadi at Exh.40
forwarded by Police Station to the Executive Magistrate referring
to Janvajog Entry No.51 of 2000 and Exh.41 is the Dying
Declaration recorded. It appears that the Dying Declaration, which
was recorded in the night between 25 th and 26th March, 2000 bears
NEUTRAL CITATION
R/CR.A/629/2003 JUDGMENT DATED: 07/03/2026
undefined
the signature of the victim, which again creates doubt as few hours
prior to recording of Dying Declaration when the complaint was
made from the hospital, the complaint bears finger prints, meaning
thereby, the victim was unable to put her signature.
9. Another doubt that is created is on the timings
mentioned in the Dying Declaration at Exh.41 itself. Along with
Yadi at Exh.40, the Executive Magistrate arrived at the Hospital
and on the Yadi at Exh.40, an endorsement of Doctor is appearing
to mention that the patient is in state of consciousness, which
endorsement bears the time 1.40 am. Thereafter, it appears that
the Executive Magistrate has proceeded to record the Dying
Declaration at Exh.41, wherein time mentioned to start with the
recording is 1.45, whereas completion of recording is at 2.30 am.
10. The Court has perused Exh.41 from the Record and
Proceedings and found that time mentioned against the
commencement of recording of proceedings is mentioned as 1.45,
there appears to be an overwriting. The Court finds that initially
there appears to be a figure which was 2.00, which has been
overwritten as 1.45. In the opinion of the Court, this overwriting is
not an innocent overwriting, but is to overcome absence of
endorsement on the Dying Declaration itself by the Doctor
regarding the fit state of mind of the victim to give a Dying
Declaration and also to support the case of IO that the fitness of
NEUTRAL CITATION
R/CR.A/629/2003 JUDGMENT DATED: 07/03/2026
undefined
mind was certified within proximate time. Therefore, in order to
connect the time mentioned in Exh.40 about the endorsement with
the recording of the Dying Declaration, the overwriting appears to
have been made.
11. This therefore, clearly creates doubt on the case of the
prosecution regarding the victim being in fit state of mind to give
the Dying Declaration.
12. Further, upon perusing the depositions of witnesses
namely, PW No.2-Hanifaben Abdulbhai Vora (Exh.26), PW No.3-
Ashaben Abdulbhai Vora (Exh.27), PW No.4-Abdulmajid
Abdulrahman Vora (Exh.28) and PW No.5-Sharifaben Abdulmajid
Vora (Exh.29) it appears that they have not supported the case of
the prosecution regarding allegations of cruelty and setting the
deceased on fire and have been declared hostile.
13. Further, upon perusing the record it also appears that
the husband of the deceased (accused No.1) had sustained burn
injuries for which he was also admitted in the hospital. Accused
No.1 also under-went treatment as indoor patient for 22 days. The
prosecution has not given any explanation as to how the said
injuries were sustained by accused No.1 and this circumstance
needs to be taken into consideration particularly when the case of
the defence is that, the deceased had accidentally sustained burn
NEUTRAL CITATION
R/CR.A/629/2003 JUDGMENT DATED: 07/03/2026
undefined
injuries and that accused No.1 sustained injuries while attempting
to rescue her.
14. Learned Advocate for the respondents has relied upon
decision of the Division Bench of this Court passed in case of State
of Gujarat Vs. Kalubhai Amarshi Aghara in Criminal Appeal
No.512 of 1997 dated 07.04.2025, wherein the Court has held in
Para-44 as under:-
"44. In light of the aforementioned evidence, it would
be apposite to refer to the decision of the Supreme
Court in the case of Jayamma and another vs. State of
Karnataka reported in (2021) 6 S.C.C. 213. While
examining the evidentiary value of the dying
declaration under Section 32 of the Evidence Act, 1872,
the Supreme Court has referred to catena of decision
on the evidentiary value of dying declaration. The
Supreme Court, while delving into the medical
condition of the patient, who has given the dying
declaration, has disbelieved such dying declaration
though the doctor had certified that the patient was
conscious and talking. It is held that there is no hard
and fast rule of universal application in this regard and
much would depend upon the nature of burns, part of
the body affected, impact of burns on the deceased to
think and other relevant factor. In paragraph No.14.3,
the Supreme Court has held thus:-
"14.3. In Sham Shankar Kankaria v. State of
Maharashtra,it was re- stated that the dying declaration
NEUTRAL CITATION
R/CR.A/629/2003 JUDGMENT DATED: 07/03/2026
undefined
is only a piece of untested evidence and must like any
other evidence satisfy the Court that what is stated
therein is the unalloyed truth and that it is absolutely
safe to act upon it. Further, relying upon the decision in
Paniben v. State of Gujarat wherein this Court summed
up several previous judgments governing dying
declaration, the Court in Sham Shankar Kankaria
(Supra) reiterated:-
"11......(i) There is neither rule of law nor of prudence
that dying declaration cannot be acted upon without
corroboration. (See Munnu Raja v. State of M.P.[(1976)
3 SCC 104]);
(ii) If the Court is satisfied that the dying declaration is
true and voluntary it can base conviction on it, without
corroboration. (See State of U.P. v. Ram Sagar Yadav
[(1985) 1 SCC 552 and RamawatiDevi v. State of Bihar
[(1983)1 SCC 211]);
(iii) The Court has to scrutinise the dying declaration
carefully and must ensure that the declaration is not
the result of tutoring, prompting or imagination. The
deceased had an opportunity to observe and identify
the assailants and was in a fit state to make the
declaration. (See K. Ramachandra Reddy v. Public
Prosecutor [(1976) 3 SCC 618]);
(iv) Where dying declaration is suspicious, it should not
be acted upon without corroborative evidence. (See
Rasheed Beg v. State of M.P. [(1974) 4 SCC 264]);
(v) Where the deceased was unconscious and could
NEUTRAL CITATION
R/CR.A/629/2003 JUDGMENT DATED: 07/03/2026
undefined
never make any dying declaration the evidence with
regard to it is to be rejected. (See Kake Singh v. State
of M.P. [1981 Supp SCC 25]);
(vi) A dying declaration which suffers from infirmity
cannot form the basis of conviction. (See Ram
Manorath v. State of U.P. [(1981) 2 SCC 654]);
(vii) Merely because a dying declaration does not
contain the details as to the occurrence, it is not to be
rejected. (See State of Maharashtra v. Krishnamurti
Laxmipati Naidu [1980 Supp SCC 455]);
(viii) Equally, merely because it is a brief statement, it
is not to be discarded. On the contrary, the shortness of
the statement itself guarantees truth. (See Surajdeo
Ojha v. State of Bihar [1980 Supp SCC 769]);
(ix) Normally the court in order to satisfy whether the
deceased was in a fit mental condition to make the
dying declaration look up to the medical opinion. But
where the eyewitness has said that the deceased was in
a fit and conscious state to make the dying declaration,
the medical opinion cannot prevail. (See Nanhau Ram
v. State of M.P. [1988 Supp SCC 152]);
(x) Where the prosecution version differs from the
version as given in the dying declaration, the said
declaration cannot be acted upon. (See State of U.P. v.
Madan Mohan [(1989) 3 SCC 390]);
(xi) Where there are more than one statement in the
nature of dying declaration, one first in point of time
NEUTRAL CITATION
R/CR.A/629/2003 JUDGMENT DATED: 07/03/2026
undefined
must be preferred. Of course, if the plurality of dying
declaration could be held to be trustworthy and
reliable, it has to be accepted. (See Mohanlal
Gangaram Gehani v. State of Maharashtra [(1982) 1
SCC 700])."
15. The Court may also draw strength from the decision of
the Apex Court in case of Rajesh Prasad Vs. State of Bihar &
Anr. reported in (2022) 3 SCC 471, wherein the Apex Court has
examined the case law with regard to the power of the High Court
to overturned the decision of the Sessions Court where an another
view is possible. Examining the case including that of Chandrappa
& Ors. vs. State of Karnataka reported in (2007) 4 SCC 415,
the Apex Court has culled out the general principles regarding the
powers of the Appellate Court while dealing with the appeal
against the order of acquittal. The Apex Court has held that the
appellate Court has full power to review, re-appreciate and
reconsider the evidence upon which the order of acquittal is
founded. However, the appellate court has to keep in mind that in
case of an acquittal, there is a double presumption in favour of the
accused. Firstly, the presumption of innocence is available to him
under the fundamental principle of criminal jurisprudence, and
thereafter, upon securing of acquittal, the presumption is further
reinforced, reaffirmed and strengthened, and therefore, whenever
there are two reasonable conclusions are possible on the basis of
NEUTRAL CITATION
R/CR.A/629/2003 JUDGMENT DATED: 07/03/2026
undefined
the evidence on record, ordinarily, the Apex Court would not
disturb the findings of acquittal recorded by the Trial court.
16. Considering the evidence on record, the Court finds
that the prosecution has failed to establish the guilt of the accused
beyond reasonable doubt and the complaint at Exh.43 and the
Dying Declaration at Exh.41 does not inspire confidence of the
Court. Moreover, the witnesses have not supported the case of
prosecution and the failure of prosecution to provide any
reasonable explanation in respect of the injuries sustained by
accused No.1 coupled with other surrounding circumstances does
not warrant interference of the Court with the impugned judgment
and order passed by the trial Court.
17. In the result, the appeal fails and is dismissed. The
judgment and order dated 13.02.2003 passed by Additional
Sessions Judge, Fast Track Court, Nadiad in Sessions Case
No. 155 of 2000 stands confirmed. Bail and bail bonds of the
accused, if any, stand discharged. R & P be sent back to the
concerned Trial Court.
Sd/-
(A.Y. KOGJE, J)
Sd/-
(J. L. ODEDRA, J)
SHITOLE
