STATE OF GUJARAT vs SAYABABHAI SARTANBHAI BARIYA

R/CR.A/2381/2026 JUDGMENT DATED: 21/10/2026
(GJHC240611232026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 2381 of 2026

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ILESH J. VORA sd/-

and
HONOURABLE MR. JUSTICE R. T. VACHHANI sd/-
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Approved for Reporting Yes No
no
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STATE OF GUJARAT
Versus
SAYABABHAI SARTANBHAI BARIYA & ANR.
==========================================================
Appearance:
MR LB DABHI ADDITIONAL PUBLIC PROSECUTOR for the Appellant(s) No.
1
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CORAM: HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI

Date : 21/10/2026

ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
1. Being aggrieved and dissatisfied by the judgment and order
dated 01.07.2025 passed by the learned Additional Sessions
Judge, Limkheda at Dahod in Sessions Case No.24 of 2024,
whereby the learned Sessions Judge by extending the benefit of
doubt under Section 235(1) of the Code of Criminal Procedure
(for short, ‘Cr.P.C.’), 1973, acquitted the accused of the offences
punishable under Sections 304, 114 of the Indian Penal Code
(for short, ‘I.P.C.’), 1860, the present appeal under Section 419 of
the Bharatiya Nagarik Suraksha Sanhita (for short, ‘B.N.S.S.’),
2023, has been preferred by the appellant herein.
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2. For brevity and convenience, the parties are referred to as
per their original status before the learned Sessions Court.
2.1 Brief facts of the case are as under:
3. The complainant, Salubhai Rupsingbhai Baria, resident of
Guna, Shikari Faliyu, Taluka Devgadh Baria, had a son named
Ramanbhai, who had three children, namely Mayur (aged 13
years), Ketan (aged 11 years) and Nayan (aged 7 years). On
28.12.2023, the complainant, his wife Champaben, his
daughter-in-law Tinaben and his grandchildren were present at
their house. Ketan was found missing from the house, and at
about 18:00 hours, the complainant searched for him in the
neighboring houses and, on not finding him, in the adjoining
agricultural fields, Ketan was found lying face down on the
ground at the boundary of a maize field belonging to the
respondents – accused, namely Saybabhai Sartanbhai Baria and
Gopsingbhai Sartanbhai Baria, residents of Guna, Baria Faliyu.
Both of his legs were entangled in a fence of thin iron wire tied
over wooden poles planted along the boundary of the field. He
did not respond when called and was found unconscious. Both
his legs had been burnt and blackened by electric current.
3.1 According to the complainant, the respondents – accused,
being the owners of the said maize fields, had planted wooden
poles along the boundaries of both fields, fixed an iron wire fence
over them and passed electric current through the fence, thereby
endangering the lives of others. It was alleged that Ketan died as
a result of electrocution caused by such current. The
complainant, accompanied by his nephew Narvatbhai Limbabhai
Patel and one Abhesingbhai Jhalabhai Baria, left the dead body
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of Ketan at the Government Hospital, Piplod, and on 29.12.2023
lodged a complaint at Piplod Police Station. On the basis of the
said complaint, an offence came to be registered as Part-A C.R.
No.11821052230612/2023 for the offences punishable under
Sections 304 and 114 of the I.P.C..
3.2 The investigation was entrusted to the Investigating Officer,
who drew the inquest Panchnama of the dead body and the
Panchnama of the place of incident in the presence of Panchas.
The wire was seized from the place of incident under a
Panchnama. The dead body was sent for post-mortem, and the
post-mortem note was made part of the investigation. The
clothes of the deceased, which were taken by the doctor at the
time of the post-mortem, were produced before the Investigating
Officer and seized under a Panchnama. The statements of the
concerned witnesses were recorded, and the accused were
arrested. On completion of the investigation, the Investigating
Officer found sufficient material against the accused and filed
the charge-sheet before the learned Judicial Magistrate First
Class, Devgadh Baria. After ensuring that copies of the charge-
sheet and the connected documents had been furnished to the
accused free of cost, and as the case was triable exclusively by
the Court of Session, the learned Magistrate, in exercise of
powers under Section 209 of the Cr.P.C., committed the case to
the learned Sessions Court by an order dated 15.05.2024. The
case was registered as Sessions Case No.24 of 2024.
3.3 The learned Sessions Court framed the charge against the
accused at Exh.5, and the accused, having pleaded not guilty,
their pleas were recorded at Exh.6 and Exh.7. The prosecution,
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in order to bring home the guilt of the accused, adduced oral as
well as documentary evidence, and thereafter closed its evidence
by filing a pursis at Exh.56. The further statements of the
accused under Section 313 of the Cr.P.C. were recorded, wherein
they denied the allegations and stated that they were innocent
and had been falsely implicated. Upon conclusion of the trial, the
learned Sessions Court, by the impugned judgment and order,
acquitted the respondents – accused, namely (1) Saybabhai
Sartanbhai Baria and (2) Gopsingbhai Sartanbhai Baria, under
Section 235(1) of the Cr.P.C. of the offences punishable under
Sections 304 and 114 of the I.P.C., giving them the benefit of
doubt.
3.4 Being aggrieved, the appellant has preferred the present
appeal.
4. Submissions made on behalf of the appellant – State are as
under:
4.1 It is submitted that the impugned judgment and order of
acquittal is contrary to the evidence on record and suffers from
errors of law and appreciation. It is submitted that the learned
Sessions Court has failed to appreciate the consistent and
cogent evidence of the prosecution witnesses, which establishes
beyond reasonable doubt that Ketan, aged 11 years, died of
electrocution on account of a live electric wire fence erected
along the boundary of the field of the respondents – accused.
4.2 It is submitted that PW-1 complainant (Exh.9) categorically
deposed that he found the deceased lying face down at the
boundary of the field of the respondents – accused, who are real
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brothers. PW-3 Abhaysingh Zalabhai Bariya (Exh.13), an
independent neighbour-cum-eyewitness, deposed that, on
hearing the hue and cry of the family members, he reached the
place of the incident and found that the respondents – accused
had applied live electric current to the fence to protect their
crops from wild boar. The evidence of PW-4 Bhopatbhai Kalubhai
Bariya (Exh.14), PW-6 Champaben (Exh.17) and PW-7 Tinaben
(Exh.18), who are close relatives of the deceased, supports the
prosecution case and shows that the death occurred due to
electrocution at the field of the respondents – accused.
4.3 It is further submitted that PW-8 Surajbhai Dhudabhai
Bariya (Exh.20), the Panch Witness to the Panchnama of the
place of the incident, and PW-12 Pratapsingh Madhusingh
Bariya (Exh.29), the Panch Witness to the recovery of the
Muddamal, have supported the prosecution and confirmed the
existence of live electric fencing around the agricultural field.
PW-13 Dr. Jigneshkumar Selot (Exh.36), who conducted the
post-mortem, has opined that the deceased sustained fatal
injuries on both legs due to electric shock and that the cause of
death was electrocution.
4.4 According to him, nothing material has been elicited in the
cross-examination of any of these witnesses.
4.5 It is submitted that the learned Sessions Court committed
a patent error of law in holding that the ownership of the field
had to be proved exclusively by documentary evidence, such as
certified copies of revenue records or survey maps. There is no
such requirement in law, and ownership or possession of
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agricultural land, for the purposes of a criminal trial, can be
established by credible and consistent oral evidence of witnesses
having personal knowledge. PW-1 (Exh.9), PW-3 (Exh.13), PW-6
(Exh.17), PW-7 (Exh.18) and PW-12 (Exh.29) have identified the
field as belonging to, and jointly owned or occupied by, the
respondents – accused. The respondents – accused did not
examine the Sarpanch, the Talati or any other person to dispel
this evidence. In any case, it is submitted that the prosecution
was required to prove only the occupation of the field and the
installation of the live wire by the respondents – accused, and
the question of title has no bearing on the cause of death.
4.6 As regards the offence, it is submitted that Section 304A of
the I.P.C. applies only where there is neither intention nor
knowledge to cause death. In the present case, the respondents –
accused had clear knowledge that even a minor touch of a live
wire by any person could prove fatal, and that such a fence near
human habitation was likely to cause death or grievous injury.
The act therefore falls within Section 304 of the I.P.C. It is lastly
submitted that, as the respondents – accused jointly cultivated
the crops and had reason to protect their common crop, the
fence must be taken to have been erected in furtherance of their
common design, making both liable with the aid of Section 114
of the I.P.C..
4.7 Upon aforesaid submissions, it is urged to quash and set
aside the impugned judgment and order and the respondents –
accused be convicted for the offences with which they were
charged.
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5. We have heard learned APP for the State, at the stage of
admission, and carefully perused the oral as well as
documentary evidence adduced before the learned Sessions
Court.
6. In the present case, two questions arise for determination:
(i) whether the death of Ketan was unnatural, caused by
electrocution?; and (ii) whether the prosecution has proved
beyond reasonable doubt that the electrified fence was erected
and charged by the respondents – accused?.
7. On the first question, we find no infirmity in the finding of
the learned Sessions Court, and the same is not disputed before
us. PW-13 Dr. Jigneshkumar Selot (Exh.36) noted electric scar
marks on both legs of the deceased. He opined that the injuries
were ante-mortem and that death was caused by electric shock,
which the post-mortem note (Exh.38) corroborates. The
suggestion that death was due to electrocution was not
challenged in his cross-examination. The evidence of the family
witnesses and the Panchas also shows that the deceased was
found entangled in the wire fence along the boundary of the
field. The finding that the death was unnatural and caused by
electrocution is therefore affirmed.
8. The real controversy is the second question. The offence
under Section 304 read with Section 114 of the I.P.C. cannot be
sustained merely by showing that the child died from a live wire.
The prosecution must prove, by cogent evidence, that the
accused erected the fence, charged it with current, and did so
with the knowledge required by Section 304 of the I.P.C..
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9. We accept the legal submission of the learned APP that
ownership or possession of agricultural land need not be proved
exclusively by revenue records, and that credible oral evidence of
witnesses with personal knowledge may suffice. To that extent,
any observation of the learned Sessions Court suggesting
otherwise cannot be sustained. However, the learned Sessions
Court did not acquit the accused merely for want of documents.
It found that the oral evidence itself was neither consistent nor
precise on ownership and possession. On our own appreciation,
we find that finding to be a plausible and reasonable view.
10. The close-relative witnesses, namely PW-1 (Exh.9), PW-6
(Exh.17) and PW-7 (Exh.18), did not see the accused erect the
fence or pass current through it. In cross-examination, PW-1,
PW-2, PW-3 and PW-6 admitted that they did not know the
survey number of the field or in whose name it stood in the
revenue records. PW-3 (Exh.13), the so-called independent
witness, stated that the field belonged to Saybabhai and to other
co-owners, including Bhimsingbhai and Gopsingbhai. PW-12
(Exh.29) described the place as the field of Gopsingbhai alone,
without disclosing the basis of that knowledge. Thus the
evidence variously attributes the field to accused No.1 alone, to
both accused, or to several co-owners. It does not establish that
the field was owned or cultivated exclusively by the respondents
– accused. The Investigating Officer admitted that the
Panchnama did not mention the survey number, that he did not
call the Talati to the spot, and that he did not obtain any
revenue record or map. In these circumstances, the prosecution
cannot claim the benefit of the respondents’ failure to examine
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the Sarpanch or the Talati. The burden lay on the prosecution
and did not shift to the accused.
11. The prosecution has also not established the source or
mode of the electric connection. No witness has stated from
which pole or line the electricity power was drawn, or who made
the connection. The Investigating Officer did not identify the
pole, and no evidence of any examination of the electric supply is
on record. The two pieces of wire produced by accused No.1 and
seized under a Panchnama were not recovered under Section 27
of the Indian Evidence Act from a place disclosed by the accused
during custody. There is also no evidence that those pieces were
used to carry current to the fence. The seizure therefore has no
incriminating value.
12. The evidence also shows inconsistencies in the prosecution
case on how the deceased came to be at the spot. PW-1 stated in
cross-examination that the deceased had come to his house at
about 17:00 hours and that the incident occurred an hour later.
PW-6 and PW-7 stated that the deceased was heating water at
home before he went missing. PW-2 stated that the deceased had
gone to the field to collect a kite. PW-2 was not present at the
place of the incident and spoke only from what he was told over
the telephone. These discrepancies do not by themselves destroy
the prosecution case, but they reduce the weight of the
testimony of interested witnesses.
13. The evidence that the fence was electrified to protect the
crop from wild boar, spoken to by PW-3 and the Panchas,
establishes the existence of a charged fence. It does not establish
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that the respondents – accused were the persons who made it
so. The finding that the field was jointly owned by several
persons raises the real possibility that someone other than the
respondents – accused erected the fence. Likewise, as no
common intention or abetment has been established against any
particular accused, Section 114 of the I.P.C. has no application.
Since the foundational fact of the accused’s authorship of the
fence is not proved beyond reasonable doubt, the question
whether the act falls under Section 304 or Section 304A of the
I.P.C., does not arise for decision, and we express no opinion on
it.
14. Here it would be useful to advert to the dictum in the case
of Syad Akbar Vs. State of Karnataka1 in which this Court
proceeded on the basis that doctrine of res ipsa loquitur stricto
sensu would not apply to a criminal case as its applicability in
an action for injury by negligence is well known. In Syad Akbar
(supra), this Court opined:
...“29. Such simplified and pragmatic
application of the notion of res ipsa loquitur,
as a part of the general mode of inferring a
fact in issue from another circumstantial
fact is subject to all the principles, the
satisfaction of which is essential before an
accused can be convicted on the basis of
circumstantial evidence alone. These are:
Firstly, all the circumstances, including the
objective circumstances constituting the
accident, from which the inference of guilt is
to be drawn, must be firmly established.
Secondly, those circumstances must be of a
determinative tendency pointing unerringly
towards the guilt of the accused. Thirdly,
the circumstances should make a chain so
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complete that they cannot reasonably raise
any other hypothesis save that of the
accused's guilt. That is to say, they should
be incompatible with his innocence, and
inferentially exclude all reasonable doubt
about his guilt.
xxx xxx xxx
12. For bringing home the guilt of the
accused, prosecution has to firstly prove
negligence and then establish direct nexus
between negligence of the accused and the
death of the victim. Perusal of the record
reveals that out of various witnesses arrayed
by the prosecution, there are no eye
witnesses. Any evidence brought on record
is merely circumstantial in nature. We are
constrained to repeat our observation that it
sounds completely preposterous that a
telephone wire carried 11KV current without
melting on contact and when such current
passed through the Television set, it did not
blast and melt the wiring of the entire
house. It is even more unbelievable that
Appellant no. 2 came in contact with the
same voltage and managed to get away with
a few abrasions. The Appellants therefore
are entitled to be given the benefit of doubt;
more so, when there is no report of a
technical expert to corroborate the
prosecution story.” ...
15. We would like to place on record the scope of interference
in an appeal against the acquittal and when the same is
justified. In exceptional cases, where there are compelling
circumstances and the judgment under appeal is found to be
perverse, the appellate court can interfere with the judgment of
acquittal. The Appellate Court should consider the presence of
innocence of the accused and further that, the trial Court’s
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acquittal bolsters the presumption of his innocence. Interference
in a routine manner, where the other view of possible should be
avoided, unless there are reasons for interference, as the same
has been laid down by the Hon’ble Supreme Court, in the case of
Tulasareddi @ Mudakappa & Anr. v. The State of Karnataka &
Ors., 2026 INSC 67.
16. In our considered view, the learned Sessions Court has
taken a reasonable and plausible view of the evidence in giving
the benefit of doubt to the respondents – accused. The view is
not perverse and calls for no interference.
17. In view of the foregoing, the present appeal sans merit and
deserves to be dismissed and accordingly, it is dismissed.
18. The impugned judgment and order dated 01.07.2025
passed by the learned Additional Sessions Judge, Limkheda at
Dahod in Sessions Case No.24 of 2024 stands confirmed.
19. Record and proceeding, if any, be remitted to the
concerned Court forthwith.
sd/-
(ILESH J. VORA,J)
sd/-
(R. T. VACHHANI, J)
PARMAR KRISH
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