STATE OF GUJARAT vs SHARDABEN DHANABHAI SOLANKI
- Court
- Gujarat High Court
R/CR.A/1158/1998 JUDGMENT DATED: 16/10/2026
(GJHC240326361998)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1158 of 1998
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
and
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
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Approved for Reporting Yes No
==========================================================
STATE OF GUJARAT
Versus
SHARDABEN DHANABHAI SOLANKI & ORS.
==========================================================
Appearance:
MR ROHAN RAVAL, APP for the Appellant(s) No. 1
MRS MADHUBEN SHARMA(824) for the Opponent(s)/Respondent(s) No.
1,2,3
==========================================================
CORAM: HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
and
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 16/10/2026
JUDGMENT
(PER : HONOURABLE MR.JUSTICE MOOL CHAND TYAGI)
1. The present Appeal is filed by the Appellant – State of
Gujarat under the provisions of Section 378 (1)(3) of the Code
of Criminal Procedure, 1973 ( hereinafter be referred to as
Cr.P.C. ) challenging the Judgment dated 27.02.1998 passed
by the learned Additional Sessions Judge, Panchmahals at
Godhara ( hereinafter be referred to as the Ld. Trial Court /
Ld.ASJ) in Sessions Case No.151 of 1997, whereby the
Respondents herein were ordered to be acquitted of the
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charges for the offences punishable under Section 302 r/w 34
of the Indian Penal Code,1860 (hereinafter be referred to as
“IPC”) .
2. The facts and circumstances giving rise to the filing of
the present appeal are as follows: On 11.06.1997, at about
23:00 hours, at Varsadana Faliya, Govindpur, accused No.1
quarreled with the deceased-Maniben regarding the mangoes
of Sariyala mango tree. Thereafter, all the accused persons, in
support of accused No. 1, went to the hut of the deceased-
Maniben. Accused Nos.1 and 2 caught hold of the deceased
while accused No.3 brought a can of kerosene from the hut of
the deceased, sprinkled kerosene over her body and set her
on fire. During the course of treatment, the deceased
succumbed to her injuries.
3. Accordingly, FIR being I.C.R.No. 210 of 1997 was lodged
at Halol Police Station, Panchmahals and investigation was
carried out and ultimately, charge-sheet came to be filed
against the accused under Sections 302 r/w 34 of the IPC
before the Judicial Magistrate First Class, Halol. As the case
was exclusively triable by the Court of Sessions, learned Chief
Judicial Magistrate under Section 209 of the Cr.P.C.
committed the said case to the Court of Sessions Court,
Panchmahals at Godhara, which came to be numbered as
Sessions Case No.151 of 1997.
4. On 24.12.1997, the learned Trial Court framed the
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charges at Exh.3 under Sections 302 r/w 34 of the IPC. Since,
the accused did not plead guilty and claimed to be tried, they
were tried for the said offences.
5. In order to bring the home the guilty of the accused, the
prosecution has led following oral and documentary
evidences:-
ORAL EVIDENCE
SR.
No.
P.W.NO. WITNESS Exh.
1. 1. Deposition of Panch-witness – Raijibhai Mavabhai 10
2. 2. Deposition of Panch-witness – Himmatsinh
12
Anopsinh
3. 3. Deposition of witness-Dr.Bhagwatsinh
13
Poonamchand Itare, Medical Officer, Referal
Hospital, Halol.
4. 4. Deposition of witness – Ganpatsinh Chhatrasinh
Parmar
16
5. 5. Deposition of witness – Rajubhai Hirabhai Parmar 18
6. 6. Deposition of witness – Ramanbhai Nanabhai
Solanki
21
7. 7. Deposition of witness- Somabhai Shabhai Solanki 22
8. 8. Deposition of witness- Deepsing Bhailalbhai Tadavi
23
– Deputy Mamlatdar & Executive Magistrate
9. 9. Deposition of witness-Kapilaben Somabhai
27
10. 10. Deposition of witness – Ramjubha Dalubha 28
11. 11. Deposition of witness – Jivabhai Hirabhai 38
12. 12. Deposition of witness- Dr.Kishor Promodrai Desai 39
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DOCUMENTARY EVIDENCE
Sr.No. EXH Description
1. 11 Panchnama of Scene of offence
2. 14 Medical Certificate of Halol Referal Hospital
3. 15 Case papers of Halol Referal Hospital
4. 17 Panchnama of match-stick produced by the accused
5. 19 Inquest Panchnama
6. 20 Vardhi given by Ravpura Police Station
7. 26 Dying Declaration
8. 29 Janvajog Entry No.59/97
9. 30 Vardhi given by Halol Police Station
10. 31 Yadi written to Medical Officer, S.S.G. Hospital
11. 32 Yadi written to Executive Magistrate
12. 33 Mortuary Form
13. 34
Report regarding addition of Section 302 of the IPC
&
35
14. 37 Yadi of receiving muddamal by F.S.L.
15. 40 P.M.Report
6. After recording all the evidence, statements of the
accused under Section 313 of Cr.P.C. were recorded and all
the incriminatory evidence were put to them. They denied all
the incriminatory evidences and took the plea that they have
been falsely implicated in the crime. Thereafter, the case was
fixed for the evidence of accused, but they had not led any
oral and/ or documentary evidence. Thereafter, hearing the
arguments on behalf of the prosecution and the defence and
having considered the arguments and evaluating the oral as
well as documentary evidences, the Ld. ASJ acquitted the
accused of all the charges levelled against them by the
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Judgment dated 27.02.1998.
7. Being aggrieved by and dissatisfied with the judgment
dated 27.02.1998 passed by the learned ASJ, Panchmahals at
Godhara, the appellant-State has preferred the present
Criminal Appeal.
8. We have heard learned Additional Public Prosecutor for
the appellant–State.
9. Mr. Ronak Raval, learned Additional Public Prosecutor
for the appellant–State vehemently submitted that the learned
ASJ had failed to properly appreciate the oral evidence of
P.W.8, who had recorded the dying declaration and proved the
same at Exh. 26. P.W.8 had deposed that deceased-Maniben
had categorically stated in her dying declaration that accused
Nos. 1 and 2 had caught hold of her while accused No. 3 had
sprinkled kerosene over her body and set her on fire. It is
submitted that the learned ASJ had disbelieved the dying
declaration solely on the ground that P.W.8 had not obtained a
medical opinion regarding the fitness of the deceased to make
the declaration before recording the same. However, P.W.8
had categorically deposed that deceased-Maniben was
conscious and in a fit state of mind at the time of making the
dying declaration. Relying upon the principles laid down by
the Hon’ble Apex Court in case of Laxman v. State of
Maharashtra, reported in (2002) 6 SCC 710, he submitted
that obtaining a medical certificate regarding the fitness of
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the declarant is not an absolute pre-requisite for accepting a
dying declaration, provided the person recording it is satisfied
that the declarant was in a fit state of mind. He, therefore,
submitted that the learned ASJ had erred in disbelieving the
dying declaration and consequently acquitting the accused of
the charges levelled against them. He, therefore, submitted
that the impugned judgment of acquittal be set aside.
10. Though the Rule has been duly served, none appears on
behalf of the respondents when the matter is called out.
11. We have heard the learned APP appearing for the
appellant - State and perused the material available on record.
Before proceeding further, it would be apposite to scrutinize
the oral as well as documentary evidence tendered by the
material prosecution witnesses before the learned ASJ, so as
to decided as to whether the order of acquittal is sustainable
or liable to be set aside.
12. In order to bring home the guilt of the accused, the
prosecution has examined as many as 12 witnesses and has
also led 16 documentary evidences on record.
13. In light of the ocular evidence on record, the same
requires scrutiny. Raijibhai Mavabhai was examined as P.W.1
at Exh.10 while Himmatsinh Anopsinh was examined as P.W.2
at Exh. 12. Both witnesses were panch witnesses to the
panchnama of the scene of offence, which was produced on
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record at Exh. 11. However, both panch-witnesses have
turned hostile. Therefore, no further discussion of their
depositions is necessary.
14. The prosecution examined Dr. Bhagwatsinh
Poonamchand Itare, Medical Officer at the Referral Hospital,
Halol, as P.W.3 at Exh. 13. He deposed that deceased
Maniben had been brought to the hospital with burn injuries.
She narrated the history of the incident to him; however, she
did not name any person as the one who had set her on fire.
He proved the medical history and other relevant documents
at Exhs. 14 and 15, respectively.
15. The prosecution examined Ganpatsinh Chhatrasinh
Parmar and Rajubhai Hirabhai Parmar as P.Ws. 4 and 5 at
Exhs. 16 and 18, respectively. Both witnesses were panch
witnesses to the recovery panchnama of the matchbox, which
was produced at Exh. 17. However, both witnesses turned
hostile. Therefore, no further discussion of their depositions is
necessary.
16. The prosecution examined Ramanbhai Nanabhai Solanki,
a neighbour of deceased Maniben, as P.W.6 at Exh. 21. In his
deposition, he stated that deceased-Maniben had sustained
burn injuries while preparing food. However, he did not
support the prosecution case and was, therefore, declared
hostile. Despite being cross-examined by the learned PP,
nothing material could be elicited from him in support of the
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prosecution case. During his cross-examination by the learned
defence counsel, he admitted that, when he reached the house
of deceased Maniben, her husband was the only person
present there. He further admitted that, at the time deceased
Maniben was taken to Baroda Hospital, she was not in a
condition to speak.
17. The prosecution also examined Somabhai Shabhai
Solanki - the husband of deceased Maniben as P.W.7 at Exh.
22. He deposed that his wife had sustained burn injuries while
cooking food. As he did not support the prosecution case, he
was declared hostile. During his cross-examination by the
learned Public Prosecutor, nothing material could be elicited
in support of the prosecution case. During his cross-
examination by the learned defence counsel, he reiterated
that his wife had sustained burn injuries while cooking food.
He further stated that, when the Mamlatdar (P.W.8) arrived to
record the dying declaration, the Mamlatdar did not directly
ask deceased-Maniben any questions but instead made
inquiries of his brother -Shantilal. According to P.W.7, the
Mamlatdar recorded the dying declaration in his presence on
the basis of the information provided by Shantilal.
18. The prosecution examined Deepsing Bhailalbhai Tadavi,
Deputy Mamlatdar and Executive Magistrate, as P.W.8 at Exh.
23. He deposed that, on 12.06.1997, upon receiving a Yadi for
recording the dying declaration, he went to S.S.G. Hospital,
Baroda. He commenced recording the dying declaration at
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16:40 hours and completed the same at 16:55 hours. He
further stated that he recorded the dying declaration and
obtained the thumb impression of deceased-Maniben thereon.
He proved the dying declaration at Exh. 26. During his cross-
examination, P.W.8 admitted that he had neither obtained any
medical opinion regarding the mental fitness of deceased
Maniben to make the dying declaration nor approached the
doctor for that purpose. He further admitted that the dying
declaration had not been recorded in a question-and-answer
format and that there was an interpolation in Column No. 6 of
the document. He also admitted that, when he reached the
hospital, a girl was present there.
19. The prosecution examined Kapilaben Somabhai,
daughter of deceased Maniben, as P.W.9 at Exh. 27. She
deposed that her mother had sustained burn injuries while
cooking food. However, she did not support the prosecution
case and was, therefore, declared hostile. During her cross-
examination by the learned Public Prosecutor, nothing
material could be elicited in support of the prosecution case.
During her cross-examination by the learned defence counsel,
she admitted that, when she reached the hospital, her mother
was not in a condition to speak.
20. The prosecution examined Ramjubha Dalubha as P.W.10
at Exh. 28. He deposed that he had made the Janvajog Entry
upon receiving a telephonic Vardhi from the doctor informing
him that deceased Maniben had sustained burn injuries. He
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proved the Janvajog Entry at Exh. 29 and the said Vardhi at
Exh. 30.
21. The prosecution examined Jivabhai Hirabhai, the
Investigating Officer, as P.W.11 at Exh. 38. He deposed
regarding the investigation carried out by him and explained
the manner in which the investigation had been conducted.
22. The prosecution examined Dr. Kishor Promodrai Desai as
P.W.12 at Exh. 39. He deposed that he had performed the
post-mortem examination of deceased-Maniben and proved
the post-mortem report at Exh. 40. He opined that the cause
of death of deceased Maniben was the burn injuries sustained
by her. During his cross-examination, he admitted that the
burn injuries were consistent with self-inflicted burns.
23. From perusal of the ocular as well as documentary
evidence available on record, it emerges that the case of the
prosecution rests primarily upon the dying declaration of the
deceased recorded by P.W.8. Before appreciating the ocular
evidence, it would be apposite to narrate the law regarding
the appreciation of ocular evidence. In the case of Balu Sudam
Khalde v. State of Maharashtra reported in 2023 SCC OnLine
SC 355, wherein the principles of appreciating the ocular
evidence have been summarized. The same is reproduced
hereinunder for ready reference:-
APPRECIATION OF ORAL EVIDENCE
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25. The appreciation of ocular evidence is a hard task.
There is no fixed or straight-jacket formula for
appreciation of the ocular evidence. The judicially
evolved principles for appreciation of ocular evidence in
a criminal case can be enumerated as under:
“I. While appreciating the evidence of a witness,
the approach must be whether the evidence of the
witness read as a whole appears to have a ring of
truth. Once that impression is formed, it is
undoubtedly necessary for the Court to scrutinize
the evidence more particularly keeping in view the
deficiencies, drawbacks and infirmities pointed out
in the evidence as a whole and evaluate them to
find out whether it is against the general tenor of
the evidence given by the witness and whether
the earlier evaluation of the evidence is shaken as
to render it unworthy of belief.
II. If the Court before whom the witness gives
evidence had the opportunity to form the opinion
about the general tenor of evidence given by the
witness, the appellate court which had not this
benefit will have to attach due weight to the
appreciation of evidence by the trial court and
unless there are reasons weighty and formidable it
would not be proper to reject the evidence on the
ground of minor variations or infirmities in the
matter of trivial details.
III. When eye-witness is examined at length it is
quite possible for him to make some
discrepancies. But courts should bear in mind that
it is only when discrepancies in the evidence of a
witness are so incompatible with the credibility of
his version that the court is justified in jettisoning
his evidence.
IV. Minor discrepancies on trivial matters not
touching the core of the case, hyper technical
approach by taking sentences torn out of context
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here or there from the evidence, attaching
importance to some technical error committed by
the investigating officer not going to the root of
the matter would not ordinarily permit rejection of
the evidence as a whole.
V. Too serious a view to be adopted on mere
variations falling in the narration of an incident
(either as between the evidence of two witnesses
or as between two statements of the same
witness) is an unrealistic approach for judicial
scrutiny.
VI. By and large a witness cannot be expected to
possess a photographic memory and to recall the
details of an incident. It is not as if a video tape is
replayed on the mental screen.
VII. Ordinarily it so happens that a witness is
overtaken by events. The witness could not have
anticipated the occurrence which so often has an
element of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb the
details.
VIII. The powers of observation differ from person
to person. What one may notice, another may not.
An object or movement might emboss its image
on one person's mind whereas it might go
unnoticed on the part of another.
IX. By and large people cannot accurately recall a
conversation and
reproduce the very words used by them or heard
by them. They can only recall the main purport of
the conversation. It is unrealistic to expect a
witness to be a human tape recorder.
X. In regard to exact time of an incident, or the
time duration of an
occurrence, usually, people make their estimates
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by guess work on the spur of the moment at the
time of interrogation. And one cannot expect
people to make very precise or reliable estimates
in such matters. Again, it depends on the time-
sense of individuals which varies from person to
person.
XI. Ordinarily a witness cannot be expected to
recall accurately the
sequence of events which take place in rapid
succession or in a short time span. A witness is
liable to get confused, or mixed up when
interrogated later on.
XII. A witness, though wholly truthful, is liable to
be overawed by the court atmosphere and the
piercing cross examination by counsel and out of
nervousness mix up facts, get confused regarding
sequence of events, or fill up details from
imagination on the spur of the moment. The sub-
conscious mind of the witness sometimes so
operates on account of the fear of looking foolish
or being disbelieved though the witness is giving a
truthful and honest account of the occurrence
witnessed by him.
XIII. A former statement though seemingly
inconsistent with the evidence need not
necessarily be sufficient to amount to
contradiction. Unless the former statement has
the potency to discredit the later statement, even
if the later statement is at variance with the
former to some extent it would not be helpful to
contradict that witness.”
[See Bharwada Bhoginbhai Hirjibhai v. State
of Gujarat 1983 Cri LJ 1096 : (AIR 1983 SC 753)
Leela Ram v. State of Haryana AIR 1995 SC
3717 and Tahsildar Singh v. State of UP (AIR 1959
SC 1012)]”
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24. Now, in light of the aforesaid principles, the evidence on
record, particularly the dying declaration, requires careful
scrutiny. At the outset, it is pertinent to note that none of the
witnesses including the husband and daughter of deceased
Maniben supported the prosecution case and they were
declared hostile. Consequently, the prosecution case rests
substantially on the dying declaration recorded by P.W.8,
which must, therefore, be examined with due care and
caution. The learned ASJ disbelieved the dying declaration on
the ground that no medical opinion regarding the mental
fitness of deceased Maniben had been obtained before
recording the same. However, in Laxman (supra), the Hon’ble
Apex Court held that a medical certificate regarding the
fitness of the declarant is not an absolute prerequisite for
accepting a dying declaration. If the person recording the
declaration is satisfied that the declarant was in a fit state of
mind and the evidence establishes such fitness, the
declaration may be relied upon by the Court. In the present
case, the dying declaration was proved at Exh. 26 by P.W.8,
the Executive Magistrate. According to the dying declaration,
on 11.06.1997, at about 11:00 p.m., an altercation took place
over the distribution of mangoes. Thereafter, accused
Shardaben and Rekhaben allegedly caught hold of deceased
Maniben, while accused Jagdishbhai sprinkled kerosene over
her body and set her on fire. She was initially taken to the
hospital at Halol and was subsequently shifted to the
Government Hospital at Vadodara. However, a close scrutiny
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of the dying declaration reveals an apparent interpolation in
the answer to Question No. 6, which asked, “What happened
to you?” The answer initially recorded was that deceased
Maniben had sustained burn injuries while cooking food. This
portion was subsequently struck out and the Executive
Magistrate recorded the words “Sustained Burn Injuries” in
its place. This alteration assumes significance in view of the
defence evidence and the depositions of other witnesses
suggesting that deceased Maniben had sustained burn
injuries while cooking food. The circumstances surrounding
this interpolation, therefore, require careful consideration
while assessing the reliability and evidentiary value of the
dying declaration.
25. P.W.8, who recorded the dying declaration also admitted
during his cross-examination that there was an interpolation
in the answer to Question No. 6. He further admitted that, at
the time of recording the dying declaration, a girl was present
there. In view of these circumstances, the possibility of
tutoring or influencing deceased-Maniben before or during
the recording of the dying declaration cannot be ruled out. It
is further the case of the prosecution that deceased Maniben
was initially taken to the Primary Health Centre, Halol. P.W.3,
who had treated deceased Maniben, deposed that he had
obtained the history of the incident directly from her.
However, according to his testimony, she had not disclosed
the name of any person responsible for setting her on fire. He
proved the relevant medical documents at Exhs. 14 and 15. A
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perusal of Exh. 15 reveals that the history recorded therein
describes the injuries as “Homicidal Burns”. This entry,
therefore, requires consideration alongside the other evidence
on record. Furthermore, P.W.6, a neighbour of deceased
Maniben; P.W.7, her husband; and P.W.9, her daughter,
deposed that she had sustained burn injuries while cooking
food. Although these witnesses did not support the
prosecution case and were declared hostile, their depositions,
together with the other evidence on record, form part of the
circumstances to be considered while assessing the reliability
of the dying declaration. The dying declaration must be
evaluated in the light of all the attending circumstances. In
the present case, the interpolation in the answer to Question
No. 6, the presence of a girl at the time of recording the
declaration, the absence of any named assailant in the history
recorded by P.W.3 and the testimony of the aforementioned
witnesses raise doubts regarding the reliability of the dying
declaration. Moreover, P.W.12, the doctor who conducted the
post-mortem examination, admitted in his cross-examination
that the burn injuries could have been self-inflicted. Thus,
upon an overall appreciation of the evidence and the
surrounding circumstances, the dying declaration recorded by
P.W.8 does not inspire sufficient confidence to form the sole
basis for recording a conviction. The prosecution has,
therefore, failed to establish the guilt of the accused beyond
reasonable doubt, and the benefit of doubt must enure to the
accused.
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26. In light of the aforesaid evidence on record, it is difficult
to rely the version of the prosecution that the accused nos.1 &
2 caught hold the deceased-Maniben and accused no.3 poured
the kerosene on deceased and set her on fire. The evidence
placed on record had not inspire the confidence of the Court
when more particularly, the version of the victim before the
witness is different. In case of Paniben (Smt.) versus State of
Gujarat reported in (1992) 2 SCC 474, the Hon’ble Apex Court
laid down the following principles governing the dying
declaration:-
“18. …….. (i) There is neither rule of law nor of prudence
that dying declaration cannot be acted upon without
corroboration. ( Munnu Raja v. State of M.P.17 )
(ii) If the Court is satisfied that the dying declaration is true
and voluntary it can base conviction on it, without
corroboration. ( State of U.P. v. Ram Sagar Yadav18 ;
Ramawati Devi v. State of Bihar19 ).
(iii) This 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 opportunity to observe and identify the assailants and
was in a fit state to make the declaration. ( K.
Ramachandra Reddy v. Public Prosecutor20 ) .
(iv) Where dying declaration is suspicious it should not be
acted upon without corroborative evidence. ( Rasheed Beg
v. State of M.P.21 )
(v) Where the deceased was unconscious and could never
make any dying declaration the evidence with regard to it
is to be rejected. ( Kake Singh v. State of M. P.22 )
(vi) A dying declaration which suffers from infirmity cannot
form the basis of conviction. ( Ram Manorath v. State of
U.P.23 ) 16 (1992) 2 SCC 474 17 (1976) 3 SCC 104 18
(1985) 1 SCC 552 19 (1983) 1 SCC 211 20 (1976) 3 SCC
618 21 (1974) 4 SCC 264 22 1981 Suppl. SCC 25 23 (1981)
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2 SCC 654 Criminal Appeal No.485 of 2012
(vii) Merely because a dying declaration does not contain
the details as to the occurrence, it is not to be rejected.
( State of Maharashtra v. Krishnamurti Laxmipati Naidu24 )
(viii) Equally, merely because it is a brief statement, it is
not be discarded. On the contrary, the shortness of the
statement itself guarantees truth. (Surajdeo Oza v. State of
Bihar25).
(ix) Normally the court in order to satisfy whether
deceased was in a fit mental condition to make the dying
declaration look up to the medical opinion. But where the
eye witness has said that the deceased was in a fit and
conscious state to make this dying declaration, the
medical opinion cannot prevail. ( Nanahau Ram v. State of
M.P.26 ).
(x) Where the prosecution version differs from the version
as given in the dying declaration, the said declaration
cannot be acted upon. ( State of U.P. v. Madan Mohan27 ).”
27. Further, in case of Irfan @ Naka versus The State o
Uttar Pradesh reported in 2023 LiveLaw (SC) 698, in
Paragraph No.62, the Hon’ble Apex Court has observed as
under:-
“62. There is no hard and fast rule for determining when a
dying declaration should be accepted; the duty of the Court is
to decide this question in the facts and surrounding
circumstances of the case and be fully convinced of the
truthfulness of the same. Certain factors below reproduced
can be considered to determine the same, however, they will
only affect the weight of the dying declaration and not its
admissibility: -
(i) Whether the person making the statement was in
expectation of death?
(ii) Whether the dying declaration was made at the earliest
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opportunity? “Rule of First Opportunity”
(iii) Whether there is any reasonable suspicion to believe the
dying declaration was put in the mouth of the dying person?
(iv) Whether the dying declaration was a product of
prompting, tutoring or leading at the instance of police or any
interested party?
(v) Whether the statement was not recorded properly?
(vi) Whether, the dying declarant had opportunity to clearly
observe the incident?
(vii) Whether, the dying declaration has been consistent
throughout?
(viii) Whether, the dying declaration in itself is a
manifestation / fiction of the dying person’s imagination of
what he thinks transpired?
(ix) Whether, the dying declaration was itself voluntary?
(x) In case of multiple dying declarations, whether, the first
one inspires truth and consistent with the other dying
declaration?
(xi) Whether, as per the injuries, it would have been
impossible for the deceased to make a dying declaration?”
28. Thus, in light of ratio laid-down by the Hon’ble Apex
Court in case of Paniben (supra) and Irfan @ Naka (supra),
the learned ASJ has not committed any error in disbelieving
the dying declaration more particularly, in light of oral
testimonies of P.W.6, P.W.7, P.W.8 and P.W.9. Over all
appreciation of oral evidence, documentary evidence and the
dying declaration available on record does not inspire the
confidence of the Court. The surrounding circumstances
makes the version of the prosecution doubtful. Thus, it is
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difficult to accept the submissions of learned APP to reverse
the judgment of acquittal recorded by learned ASJ.
29. It is well settled by catena of decisions that the an
Appellate Court has full power to review, re-appreciate and
reconsider the evidence upon which the order of acquittal is
founded. However, Appellate Court must bear in mind that in
case of acquittal there is double presumption in favour of the
accused. Firstly, the presumption of innocence is available to
him under the fundamental principle of criminal jurisprudence
that every person shall be presumed to be innocent unless he
is proved guilty by a competent Court of law. Secondly, the
accused having secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and strengthened
by the trial Court.
30. Further, if two reasonable conclusions are possible on
the basis of the evidence on record, the Appellate Court
should not disturb the finding of acquittal recorded by the
trial Court. Further, while exercising the powers in appeal
against the order of acquittal, the Court of appeal would not
ordinarily interfere with the order of acquittal unless the
approach of the lower Court is vitiated by some manifest
illegality and the conclusion arrived at would not be arrived at
by any reasonable person and, therefore, the decision is to be
characterized as perverse. Merely because two views are
possible, the Court of appeal would not take the view which
would upset the judgment delivered by the Court below.
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However, the Appellate Court has a power to review the
evidence if it is of the view that the conclusion arrived at by
the Court below is perverse and the Court has committed a
manifest error of law and ignored the material evidence on
record. A duty is cast upon the Appellate Court, in such
circumstances, to re-appreciate the evidence to arrive to a
just decision on the basis of material placed on record to find
out whether the accused are connected with the commission
of the crime with which he is charged.
31. In the instance case, learned APP failed to point out any
cogent and incriminating evidence against the accused
persons, which may connect the accused persons with the
commission of the offence beyond reasonable doubt. At this
stage, it would be profitable to refer to the judgment of Apex
Court in the case of Chandrappa & Ors. Vs. State of Karnataka
reported in 2007 (4) SCC 415. The relevant observations
made in the said judgment are as under:-
“….. (1) An appellate Court has full power to review,
reappreciate and reconsider the evidence upon which the
order of acquittal is founded; (2) The Code of Criminal
Procedure , 1973 puts no limitation, restriction or condition
on exercise of such power and an appellate Court on the
evidence before it may reach its own conclusion, both on
questions of fact and of law;
(3) Various expressions, such as, 'substantial and
compelling reasons', 'good and sufficient grounds', 'very
strong circumstances', 'distorted conclusions', 'glaring
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mistakes', etc. are not intended to curtail extensive powers
of an appellate Court in an appeal against acquittal. Such
phraseologies are more in the nature of 'flourishes of
language' to emphasize the reluctance of an appellate
Court to interfere with acquittal than to curtail the power
of the Court to review the evidence and to come to its own
conclusion.
(4) An appellate Court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of
the accused. Firstly, the presumption of innocence
available to him under the fundamental principle of
criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by the trial
court.
(5) If two reasonable conclusions are possible on the basis
of the evidence on record, the appellate court should not
disturb the finding of acquittal recorded by the trial court.”
32. Applying the aforesaid principle as laid down by the
Apex Court in the case of Chandrappa (supra), it is apparent
on record that no credible evidence had been produced by the
prosecution, which may connect the accused persons in the
alleged crime. The prosecution has miserably failed to prove
the guilt of the accused persons beyond reasonable doubt.
Thus, the Trial Court has not committed any error in
appreciating the evidence on record and in acquitting the
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accused persons from the challenges levelled against them.
33. In these facts and circumstances, we are of the
considered opinion that the learned Trial Judge committed no
error in passing the impugned judgment and order. Hence,
the present appeal deserves to be dismissed.
34. In the result, the appeal fails and is dismissed. The
judgment and order of the Trial Court dated 27.02.1998
stands confirmed. Bail and bail bonds of the accused, if any,
stands discharged. R & P be sent back to the concerned Trial
Court, forthwith. No order as to costs.
(HEMANT M. PRACHCHHAK,J)
(MOOL CHAND TYAGI, J)
GIRISH
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