Rajasthan High Court - Jodhpur
State vs Girdhari Lal And Anr ... on 23 September, 2025
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2025:RJ-JD:42552-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 134/2002
State of Rajasthan
----Appellant
Versus
1 Girdhari Lal S/o Mohan Lal,
2. Nihal Chand S/o Girdhari Lal,
Both B/c Gawariya, R/o Sojat City (Pali), PS Sojat City.
----Respondents
For Appellant(s) : Mr. Vikram Singh Rajpurohit, PP
For Respondent(s) : Mr. Suresh Kumbhat, Adv. with
Mr. Sheetal Kumbhat, Adv.
Mr. Naman Bhansali, Adv.
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
HON'BLE MR. JUSTICE RAVI CHIRANIA
Judgment
REPORTABLE
23/09/2025
(BY THE COURT) : Per Hon'ble Mr. Manoj Kumar Garg, J.
Instant criminal appeal has been filed by the State against
the judgment and order dated 21.07.2001, passed by learned
Additional Sessions Judge (Fast Track), Pali in Sessions Case No.
31/2001, whereby the learned trial court acquitted the accused-
respondents from the offences punishable under Sections 302 &
307 IPC.
Brief facts necessary to be noted for deciding the controversy
are that on 12.05.1995 at about 04:00 AM, injured- Anadi
provided a statement to Head Constable- Roop Singh of Police
Station- Sojat City. The statement was recorded in the presence of
Dr. K.R. Chouhan at the Government Hospital, Sojat City. She
(Uploaded on 25/09/2025 at 10:37:00 AM)
[2025:RJ-JD:42552-DB] (2 of 14) [CRLA-134/2002]
stated that during the night she was sleeping at home alongside
her husband and children. At around 03:00 AM, an unknown
assailant, with the intent to kill her, poured a burning substance
on her body, resulting in severe burn injuries over a substantial
portion of her body. The same substance also spilled upon her
husband, who was lying beside her, causing him to sustain burn
injuries as well. Both immediately awoke and observed an
individual fleeing through the courtyard (chowk) of the house.
However, due to the darkness at the time, Anadi was unable to
identify the perpetrator.
On the said statement, Police registered the FIR for offence
under Sections 324, 307 IPC and started investigation. During the
course of investigation, on 13.05.1995, injured- Anadi gave
statement to the Police under Section 161 Cr.P.C. reiterating the
aforesaid facts and further stated that the incident was caused by
the accused-respondents due to an old animosity between them in
respect of a property.
During her treatment, on 12.07.1995, injured- Anadi gave
statement under Section 164 Cr.P.C. before the concerned
Magistrate alleging that the accused-respondents had poured
burning substance upon her, due to which she sustained multiple
grievous burn injuries.
The accused-respondents were arrested by the Police on
20.07.1995 and challan was filed against them before the
concerned court on 03.08.1995.
On 06.08.1995, Anadi succumbed to the burn injuries. Thus,
Police filed challan against the accused respondents for offence
under Section 302 IPC.
(Uploaded on 25/09/2025 at 10:37:00 AM)
[2025:RJ-JD:42552-DB] (3 of 14) [CRLA-134/2002]
Thereafter, learned Trial Court framed, read over and
explained the charges for the offence under Sections 302, 307 IPC
to the accused respondents. They denied the charge and sought
trial.
During the course of trial, the prosecution examined as many
as fourteen witnesses and also got exhibited relevant documents
in support of its case.
The accused-respondents were examined under Section 313
Cr.P.C. In defence, no witness was examined.
Learned trial Court, after hearing the arguments from both
the sides, taking into consideration and appreciating the
documentary evidence and the statements of witnesses, vide
judgment dated 21.07.2001 acquitted the accused-respondents
from offence under Sections 302, 307 IPC. Hence this appeal
preferred by the State against the acquittal of the accused-
respondents.
Learned Public Prosecutor, Mr. Vikram Singh Rajpurohit,
vehemently contended that the learned Trial Court committed a
grave error in law by failing to properly appreciate the evidence on
record, thereby erroneously acquitting the accused-respondents of
the charges under Sections 302 and 307 of IPC. It was submitted
that the deceased- Anadi, in her statements recorded under
Sections 161 and 164 of the Cr.P.C., had specifically named both
the accused-respondents as the perpetrators of the offence. The
said act was allegedly committed due to an existing dispute over a
plot of land, which clearly established the motive behind the
crime. The prosecution has, in the present case, successfully
proved the charges beyond reasonable doubt by adducing cogent
(Uploaded on 25/09/2025 at 10:37:00 AM)
[2025:RJ-JD:42552-DB] (4 of 14) [CRLA-134/2002]
and credible oral as well as documentary evidence. However,
despite the strength of the prosecution's case, including the
explicit statements of the deceased and corroborative materials on
record, the learned Trial Court erroneously disregarded the same.
It is further argued that the Trial Court failed to exercise its
judicial discretion properly and did not evaluate the evidence in a
judicious manner, which has resulted in a miscarriage of justice
and caused the failure of substantial justice. Accordingly, it is
submitted that the impugned judgment is manifestly illegal,
perverse, and unsustainable in the eyes of law, and therefore,
deserves to be quashed and set aside.
Per contra, Mr. Suresh Kumbhat, learned counsel appearing
on behalf of the accused-respondents, submits that in the very
first statement given by the deceased- Anadi to the police at
Government Hospital, Sojat City, she specifically stated that she
saw an individual fleeing from the scene; however, due to the
darkness, she was unable to identify the said person. Learned
counsel further contends that in the subsequent statement
recorded under Section 161 Cr.P.C. on the following morning, the
deceased expressed only a suspicion that the accused-
respondents might have committed the offence. However, the
investigating officer allegedly tampered with the statement by
striking out the words "हो सकता है " (might have) and replacing them
with "ही हैं " (are the ones), thereby altering the tenor and
implication of the statement. It is also pointed out that the
statement of the deceased recorded under Section 164 Cr.P.C. was
made nearly two months after the incident, on 12.07.1995. In
these circumstances, it is submitted that the possibility of tutoring
(Uploaded on 25/09/2025 at 10:37:00 AM)
[2025:RJ-JD:42552-DB] (5 of 14) [CRLA-134/2002]
or influence by the deceased's family members, including her
husband or parents, cannot be ruled out. Hence, the reliability and
evidentiary value of the deceased's statements under Sections 161
and 164 Cr.P.C. are highly questionable. Learned counsel asserts
that the accused-respondents have been falsely implicated in the
present case and that the prosecution has failed to establish its
case beyond reasonable doubt. It is emphasized that the learned
Trial Court conducted a meticulous and comprehensive analysis of
the evidence on record and arrived at a well-reasoned and legally
sustainable judgment of acquittal, which does not warrant any
interference by this Hon'ble Court.
We have considered the submissions of the counsel for the
parties made at bar and perused the impugned judgment as well
as record of the case.
It is an undisputed fact that immediately after the incident,
the deceased- Anadi was taken to the Government Hospital, Sojat
City, where she gave her initial statement to the police in the
presence of Dr. K.R. Chouhan. In that statement, she clearly
stated that during the night, while she was sleeping alongside her
husband and children, an unknown individual poured a burning
substance on her. Her husband, who was sleeping next to her, also
sustained burn injuries due to the same act. Upon awakening,
they observed an individual fleeing from the courtyard (chowk) of
the house; however, due to the darkness, she was unable to
identify the assailant. On the following morning, the deceased
made a second statement to the police under Section 161 Cr.P.C.,
wherein she expressed only a suspicion that the accused-
respondents might have committed the offence. However, it has
(Uploaded on 25/09/2025 at 10:37:00 AM)
[2025:RJ-JD:42552-DB] (6 of 14) [CRLA-134/2002]
been alleged that the Investigating Officer tampered with this
version by striking out the words " हो सकता है " (might have) and
replacing them with "ही हैं " (are the ones), thereby materially
altering the nature and legal impact of the statement.
Subsequently, a third dying declaration was recorded under
Section 164 Cr.P.C. by a Magistrate on 12.07.1995, nearly two
months after the incident. In this statement, the deceased
unequivocally named both accused-respondents as the
perpetrators. However, given the significant delay in recording this
statement, its evidentiary value is subject to scrutiny. The
possibility of external influence or tutoring cannot be ruled out,
especially when weighed against the initial consistent version
where she had expressed her inability to identify the accused.
Subsequently, deceased- Anadi passed away on 06.08.1995 i.e.
after two and half months of the incident.
Before delving into the merits of the matter, it is essential to
examine the legal principles governing cases involving multiple
dying declarations.
Under the framework of criminal jurisprudence, a dying
declaration is considered an exception to the rule against hearsay,
founded upon the maxim 'nemo moriturus praesumitur mentire'
which means "a man will not meet his Maker with a lie on his lips."
This principle is codified under Section 32 of the Indian Evidence
Act, 1872. However, as the dying declarations suffer from inherent
weaknesses, such as the same being not made on oath nor in the
presence of the accused nor it could be tested by the cross-
examination, the law has been laid down that while scrutinizing
the dying declarations meticulous circumspection is called for.
(Uploaded on 25/09/2025 at 10:37:00 AM)
[2025:RJ-JD:42552-DB] (7 of 14) [CRLA-134/2002]
While dealing with this aspect, in the case of Dandu Lakshmi
Reddy vs. State of A.P. reported in AIR 1999 SC 3255, the
Supreme Court observed that a dying declaration must be sieved
through the judicial cullender and if it passes through gauzes it
can be made the basis of a conviction, otherwise not. In that case
the Supreme Court has adopted two tests in order to satisfy the
judicial conscience that the dying declaration contains nothing but
truth; first test is to scrutinise whether there are inherent
improbabilities in the version and the next test is whether there
are any inherent contradictions therein. While, dealing with the
multiple dying declarations, the Supreme Court in the case of
Sandeep vs State of Haryana reported in AIR 2015 SC (Cri.)
152, observed that incompatibility or inconsistency between two
dying declarations can be said to arise if the assertions in one
dying declaration are so diametrically opposed to statements in
the other version, both cannot stand together.
The Hon'ble Supreme Court in the case of Kamla v. State of
Punjab reported in (1993) 1 SCC 1 (2-Judge Bench) has held:
"5. It is well settled that dying declaration can form the
sole basis of conviction provided that it is free from
infirmities and satisfies various tests (vide Khushal Rao
v. State of Bombay [AIR 1958 SC 22 : 1958 SCR 552 :
1958 Cri LJ 106] ). The ratio laid down in this case has
been referred to in a number of subsequent cases with
approval. It is also settled in all those cases that the
statement should be consistent throughout if the
deceased had several opportunities of making such dying
declarations, that is to say, if there are more than one
dying declaration, they should be consistent. If a dying
declaration is found to be voluntary, reliable and made in
(Uploaded on 25/09/2025 at 10:37:00 AM)
[2025:RJ-JD:42552-DB] (8 of 14) [CRLA-134/2002]
fit mental condition, it can be relied upon without even
any corroboration. In a case where there are more than
one dying declaration if some inconsistencies are noticed
between one and the other, the court has to examine the
nature of the inconsistencies namely whether they are
material or not. In scrutinising the contents of various
dying declarations, in such a situation, the court has to
examine the same in the light of the various surrounding
facts and circumstances."
In the case of Amol Singh v. State of M.P. reported in
(2008) 5 SCC 468 (2-Judge Bench), has observed that:
"13. ... However, if some inconsistencies are noticed
between one dying declaration and the other, the court
has to examine the nature of the inconsistencies,
namely, whether they are material or not. While
scrutinising the contents of various dying declarations,
in such a situation, the court has to examine the same
in the light of the various surrounding facts and
circumstances."
In the case of Ashabai v. State of Maharashtra reported
in (2013) 2 SCC 224, the court observed:-
"15. When there are multiple dying declarations, each
dying declaration has to be separately assessed and
evaluated and assessed independently on its own merit
as to its evidentiary value and one cannot be rejected
because of certain variations in the other."
In the case of Uttam v. State of Maharashtra reported
in (2022) 8 SCC 576, this court observed:
"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
(Uploaded on 25/09/2025 at 10:37:00 AM)
[2025:RJ-JD:42552-DB] (9 of 14) [CRLA-134/2002]
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. Of equal
significance is the condition of the deceased at the
relevant point in time, the medical evidence brought on
record that would indicate the physical and mental
fitness of the deceased, the scope of the close
relatives/family members having influenced/tutored the
deceased and all the other attendant circumstances that
would help the court in exercise of its discretion."
In the case of Abhishek Sharma vs. State (Govt. of NCT
of Delhi) in Criminal Appeal No. 1473 of 2011 decided on
18.10.2023, after consider the various pronouncements of their
court, the following principles emerge, for a Court to consider
when dealing with a case involving multiple dying declarations:
"9.1 The primary requirement for all dying declarations is
that they should be voluntary and reliable and that such
statements should be in a fit state of mind;
9.2 All dying declarations should be consistent. In other
words, inconsistencies between such statements should be
'material' for its credibility to be shaken;
9.3 When inconsistencies are found between various dying
declarations, other evidence available on record may be
considered for the purposes of corroboration of the
contents of dying declarations.
9.4 The statement treated as a dying declaration must be
interpreted in light of surrounding facts and circumstances.
9.5 Each declaration must be scrutinized on its own merits.
The court has to examine upon which of the statements
(Uploaded on 25/09/2025 at 10:37:00 AM)
[2025:RJ-JD:42552-DB] (10 of 14) [CRLA-134/2002]
reliance can be placed in order for the case to proceed
further.
9.6 When there are inconsistencies, the statement that has
been recorded by a Magistrate or like higher officer can be
relied on, subject to the indispensable qualities of
truthfulness and being free of suspicion.
9.7 In the presence of inconsistencies, the medical fitness
of the person making such declaration, at the relevant
time, assumes importance along with other factors such as
the possibility of tutoring by relatives, etc."
It is a settled principle of law that a conviction can be
sustained solely on the basis of a dying declaration, provided that
it is found to be truthful, voluntary, free from tutoring or coercion,
and recorded when the deceased was in a fit mental and physical
condition. However, in cases involving multiple dying declarations,
courts must carefully examine any inconsistencies among them.
As a general rule, where there are contradictions, preference is
usually given to the dying declaration recorded by a Magistrate,
being considered more reliable. Nevertheless, this is not an
inflexible principle and must be applied in the facts and
circumstances of each case. The court must examine whether the
final dying declaration is corroborated by other independent and
reliable evidence on record. In the present case, the first
statement made by the deceased immediately after the incident,
in the presence of a medical officer in which she clearly states that
she could not identify the assailant. The second statement under
Section 161 Cr.P.C., recorded the following day, expresses only a
suspicion, which was allegedly altered by the Investigating Officer.
The third and final statement, recorded under Section 164 Cr.P.C.
(Uploaded on 25/09/2025 at 10:37:00 AM)
[2025:RJ-JD:42552-DB] (11 of 14) [CRLA-134/2002]
after a substantial delay of nearly two months, naming the
accused-respondents, appears to be inconsistent with the earlier
versions and, in the absence of corroboration, raises serious
doubts about its credibility. The time lapse also opens the door to
possible external influence, thus diminishing the reliability of this
dying declaration.
Moreover, the deceased ultimately succumbed to her injuries
on 06.08.1995, over two and a half months after the incident.
Irrespective of the statement of PW/5- Dr. K.R. Chouhan and ExP.
26- injury report prepared by Dr. V.R. Patil (PW/14), this
significant time gap between the incident and the death raises a
critical question regarding the causal nexus between the injuries
allegedly inflicted by the accused-respondents and the actual
cause of death. As regards ocular testimony, the only supposed
eyewitness, Rekha (PW-7), daughter of the deceased, turned
hostile during trial. The testimony of Bhanaram (PW-11), husband
of the deceased, reveals that although deceased- Anadi told him
that the accused-respondents had poured burning substance on
her, he himself admitted that he could not identify the assailant
due to darkness. The testimonies of other witnesses also suffer
from significant improvements and contradictions, thereby
undermining the overall reliability of the prosecution's case.
In light of the above circumstances, it is evident that there is
a conspicuous absence of substantive and connecting evidence
against the accused-respondents. The prosecution has not been
able to establish, beyond reasonable doubt, the involvement of the
accused-respondents in the alleged act of pouring a burning
(Uploaded on 25/09/2025 at 10:37:00 AM)
[2025:RJ-JD:42552-DB] (12 of 14) [CRLA-134/2002]
substance on the deceased, resulting in her death. The case rests
primarily on a dying declaration recorded after considerable delay,
which is contradicted by earlier versions and not corroborated by
any reliable independent evidence. The chain of circumstances is
incomplete and fraught with material contradictions, unreliable
witness testimonies, absence of medical corroboration, and
serious procedural lapses.
In such a scenario, where the prosecution has failed to
discharge its burden of proof, any conviction would be wholly
unsustainable in law and would amount to a miscarriage of justice.
Consequently, the findings of the learned Trial Court acquitting the
accused-respondents appear to be based on a proper appreciation
of evidence and do not warrant interference.
The Hon'ble Apex Court in the case of State of Madhya
Pradesh vs. Phoolchand Rathore reported in 2023 CriLR 724,
while observing that courts are generally reluctant to interfere
with an order of acquittal, recognized that such interference is
warranted when it becomes evident that the acquittal was based
on an entirely flawed reasoning process, legally erroneous, and
involved a perverse approach to the facts of the case. In such
circumstances, where the order of acquittal has led to a grave and
substantial miscarriage of justice, the Court may reverse the
acquittal and convert it into a conviction. In support of this
principle, the Court relied upon its prior judgments, emphasizing
the exceptional nature of such interference to rectify substantial
errors in the acquittal order. these are:-
(Uploaded on 25/09/2025 at 10:37:00 AM)
[2025:RJ-JD:42552-DB] (13 of 14) [CRLA-134/2002]
21. In State of M.P. & Others v. Paltan Mallah &
Others, (2005) 3 SCC 169, reiterating the same view
it was observed:
"8. ... This being an appeal against acquittal, this
Court would be slow in interfering with the findings of
the High Court, unless there is perverse appreciation
of the evidence which resulted in serious miscarriage
of justice and if the High Court has taken a plausible
view this Court would not be justified in interfering
with the acquittal passed in favour of the accused and
if two views are possible and the High Court had
chosen one view which is just and reasonable, then
also this Court would be reluctant to interfere with the
judgment of the High Court."
22. In a recent decision rendered by this Court in
Basheera Begam v. Mohd. Ibrahim & Others, (2020)
11 SCC 174, it was observed:
"190. ... Reversal of a judgment and order of
conviction and acquittal of the accused should not
ordinarily be interfered with unless such
reversal/acquittal is vitiated by perversity. In other
words, the court might reverse an order of acquittal if
the court finds that no person properly instructed in
law could have upon analysis of the evidence on
record found the accused to be "not guilty". ..."
Similarly in the case of State of State of Uttrakhand Vs. Sanjay
Ram Tamta, reported in (2025) 2 SCC (Cri) 159,' the Hon'ble
Supreme Court has observed as under:--
"6. Trite is the principle that the appellate courts would
be slow in reversing an order of acquittal, especially
since the presumption of innocence that is always
available to the accused; as a basic principle of criminal
jurisprudence, stands reinforced and reaffirmed by the
acquittal and unless there are very substantive and
compelling reasons to do so, there cannot be a reversal
of an order of acquittal. Unless it is found that the
findings are perverse and the only conclusion possible
from the compelling evidence is of guilt; appellate
courts will be slow to reverse an order of acquittal.
(Uploaded on 25/09/2025 at 10:37:00 AM)
[2025:RJ-JD:42552-DB] (14 of 14) [CRLA-134/2002]
7. Recently, in Surender Singh Vs. State of
Uttrakhand, one of us (B.R. Gavai, J.) referring to
various binding precedents of this Court succinctly laid
down the principle in the following manner in SCC para
24:
24 It could thus be seen that it is a settled legal
position that the interference with the finding of
acquittal recorded by the learned trial Judge would be
warranted by the High Court only if the judgment of
acquittal suffers from patent perversity; that the same
is based on a misreading/omission to consider material
evidence on record; and that no two reasonable views
are possible and only the view consistent with the guilt
of the accused is possible from the evidence available
on record."
In view of the discussion made hereinabove, we are of the
opinion that the prosecution has completely failed to prove its
case against the accused-respondents for offence under Sections
302, 307 IPC beyond all reasonable doubt. The appellant/State
has failed to show any error of law or on facts on the basis of
which interference can be made by this Court in the judgment
under challenge. The judgment passed by the learned trial court is
detailed, reasoned and perfectly justified. Therefore, the same
does not suffer from any infirmity and illegality warranting any
interference from this Court.
With these observations, the present criminal appeal has no
substance and the same is hereby dismissed.
Record of the trial court be sent back forthwith.
(RAVI CHIRANIA),J (MANOJ KUMAR GARG),J
16-MS/-
(Uploaded on 25/09/2025 at 10:37:00 AM)
Powered by TCPDF (www.tcpdf.org)
