STATE OF GUJARAT vs ISHAKBHAI FAKIRBHAI

R/CR.A/553/2003 JUDGMENT DATED: 17/10/2026
(GJHC240371052003)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 553 of 2003

FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

and
HONOURABLE MR.JUSTICE J. L. ODEDRA

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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
ISHAKBHAI FAKIRBHAI & ORS.
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Appearance:
MR. NIRAJ SHARMA APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 3,4,5
UNSERVED EXPIRED (N) for the Opponent(s)/Respondent(s) No. 2
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CORAM: HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR.JUSTICE J. L. ODEDRA

Date : 17/10/2026

JUDGMENT
(PER : HONOURABLE MS. JUSTICE GITA GOPI)
1. The State under Section 378 of the Code of Criminal
Procedure, 1973 (for short ‘Cr.P.C’) challenges the judgment
and order of acquittal dated 17.10.2002 passed by the
Additional Sessions Judge, Jamnagar in Sessions Case No.
42 of 1998.
2. The FIR was against 6 of the accused. The trial
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proceeded against 5 where one of the alleged person was
considered as a juvenile. The arraigned accused are
parents-in-law, 3 sisters-in-law and one sister-in-law
Jethani. The acquittal was recorded under Section 302,
498(A), 504, read with Section 114 of the Indian Penal Code.
All the accused were acquitted by giving benefit of doubt.
3. Learned APP Mr. Sharma by referring to the charge
and the facts of the case stated that the deceased daughter-
in-law was physically and mentally harassed by the accused
and she had made complaint to the husband who was
serving at ‘Muscat’ and on phone the husband had
threatened his own parents that if they would continue with
such an act he would stop sending money to them.
4. Learned APP further stated that on the day of the
incident the parents-in-law had caught hold of the deceased
and the rest of the accused had poured kerosene and
burned her and because of the injury she died.
5. Learned APP Mr. Sharma submitted that the learned
Trial Court judge was required to consider the evidence of
the Executive Magistrate as the cause of death has been
referred by the deceased. The evidence of PSO who has
recorded the complaint of Saiyraben corroborated by the
evidence in the dying declaration was sufficient evidence to
convict the accused. Mr. Sharma learned APP stated that
the learned judge has committed error in not believing the
witnesses and rather has placed undue reliance on the
history as recorded by the doctor, where the facts of the
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case prove that all the accused had burned the deceased to
death.
6. Learned APP Mr. Sharma has referred to the testimony
of the witnesses, the dying declaration and the complaint
recorded by the PSO.
7. We have perused the testimony of the witnesses which
the learned APP has referred to as well as noted the post
mortem report and the injury certificate and the history
which was given before the doctor as also the dying
declaration given by the complainant before the Executive
Magistrate. The cause of the death is on account of infected
burns. The doctor who has conducted the post mortem has
opined about the injury to the extent 90 to 95% which has
been recorded in the postmortem where the approximate
area of burns has been considered to be 95%. The father of
the deceased had not supported the prosecution case.
According to his testimony as PW 1, his son-in-law was at
‘Muscat’ and the marriage span was 3 to 4 months and it
was the second marriage of the daughter. According to the
father it has not so happened that the parents-in-law and
the sisters-in-law together had by pouring the kerosene and
by lighting the match stick had burned her. According to
the father, the daughter was not suffering any cruelty at the
hands of the in-laws.
8. The evidence of Dr. Chetankumar Jani as PW 2 who
had conducted the postmortem report had been recorded,
the cause of death has been described by the doctor who
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had conducted the post mortem on 11.01.1998. The dying
declaration at Exh. 124 was put in evidence by examining
PW 5 Vrindavan Odhavji Rajaji. The Executive Magistrate
had visited the deceased on 04.01.1998 and according to
the Executive Magistrate the dying declaration was recorded
and she was conscious. The Executive Magistrate had
visited Dr. Shah and the Executice Magistrate was drawn
to the patient by a ward boy, and after recording the
statement thumb impression was given on the dying
declaration. The dying declaration Exh. 124 was recorded
that on 04.01.1998 at about 10:00 in the morning, the
deceased was at her in-law’s house, the parents-in-law as
well as the sisters-in-law had held her and it was Jinnat
(jethani) who had poured kerosene and had burned her and
it was her maternal uncle-in-law who had taken her to the
hospital in a rickshaw.
9. PW 6 Rakol Chandra Bhupen Chandra Dutta CMO of
JG Hospital Jamnagar was examined. As per his testimony
when the patient was brought before him it was with the
history that she got accidentally burned. The medical
certificate was put in evidence, the treatment documents
which ran in 12 pages was jointly put in evidence at Exh.
128.
10. Exh. 127 is an injury certificate which has been
referred by PW 6 where the reference is of accidental burns
60 to 80% and the treatment was from private hospital.
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11. The complaint at Exh. 144 recorded cruelty meted by
the deceased as a daughter-in-law at the hands of the
accused and as per the complaint she was burned and the
accused persons had poured kerosene on her. The FIR
records that the Jethani was also responsible as an abettor
in the incident. Further statement was recorded on
05.01.1998 of the deceased Saiyaraben where she had
excluded the presence of Jethani in the house and
according to the further statement the Jethani who was
standing out was instigating the other accused who have
taken part in burning her.
12. Exh. 160 was the copy of the station diary where a
report was sent by Dr. Pankaj Shah where the patient was
brought to the Hospital on 04.01.1998 at 10:00 hours and
the history before the doctor was that she got burned from
the flames of the stove.
13. Having considered the evidence recorded on the trial,
the learned Sessions Judge could not bring himself to
believe the dying declaration and questioned the sanctity
noting that the parents themselves are not supporting the
prosecution case. The Court could conclude that it was the
father of the deceased who had given the complaint where
the first dying declaration before Dr. Pankaj Shah was
recorded. From the FIR it could be deduced that it was the
brother of the deceased who had accompanied to the
hospital. The first dying declaration as per the history before
doctor that she got burned because of flames from the stove
and even before the police it was initially declared that the
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injuries which the deceased suffered was from the flames
from the stove.
14. The learned Sessions Judge while observing about the
dying declaration before the Executive Magistrate noted that
though there was an endorsement of the doctor with regard
to the condition of the injured, however, the same does not
get corroborated by the evidence of the said doctor Dr.
Pankaj Shah and the learned judge has noted that Dr. Shah
had not even stated in his evidence that the police had come
to record the FIR and there was an Executive Magistrate
who had come for the dying declaration. As per the case
papers Exh. 128, it was declared that Saiyarabanu on that
day had got accidentally burned. The learned Sessions
judge has also recorded about the inconsistencies in the
complaint where initially the Jethani was also made
responsible and thereafter the role attributed to the Jethani
was of instigating the rest of the accused.
14.1 The learned judge had rightly come to the
conclusion of not believing the documentary evidence and
deposition of the witnesses, since the cause of the burns
sustained by the injured had not been explicitly proved by
the witnesses. The parents have not supported the
prosecution case. The in-consistent version in the FIR as
well as the further statement excluding the role of the
Jethani and the history before the doctor where deceased
was immediately brought for treatment records the
accidental injuries, the prosecution failed to prove the
alleged act of the respondents. The learned judge has
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concluded the case of acquittal by giving strong reasons.
Prosecution miserably failed to prove its case.
15. In the case of Bhagwan Sahai and Anr. v. State of
Rajasthan reported in (2016) 13 SCC 171, it was held by
Hon’ble Supreme Court as under:
8. “...Once the Court came to a finding that the
prosecution has suppressed the genesis and
origin of the occurrence and also failed to
explain the injuries on the person of the accused
including death of father of the appellants, the
only possible and probable course left open was
to grant benefit of doubt to the appellants...”
16. In the case of Chandrappa v. State of Karnataka ,
(2007) 4 SCC 415 it was held as under:
“ 42. From the above decisions, in our
considered view, the following general
principles regarding powers of the appellate
court while dealing with an appeal against an
order of acquittal emerge:
(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
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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 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 emphasise
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 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.
(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.”
17. In the case of H.D. Sundara v. State of Karnataka ,
[ (2023) 9 SCC 581 ], the Hon’ble Supreme Court has held as
under:
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“8. In this appeal, we are called upon to
consider the legality and validity of the
impugned judgment [State of Karnataka v.
H.K. Mariyappa, 2010 SCC OnLine Kar
5591] rendered by the High Court while
deciding an appeal against acquittal under
Section 378 of the Code of Criminal Procedure,
1973 (for short “CrPC”). The principles which
govern the exercise of appellate jurisdiction
while dealing with an appeal against acquittal
under Section 378 CrPC can be summarised as
follows:
8.1. The acquittal of the accused further
strengthens the presumption of innocence;
8.2. The appellate court, while hearing an
appeal against acquittal, is entitled to
reappreciate the oral and documentary
evidence;
8.3. The appellate court, while deciding an
appeal against acquittal, after re-appreciating
the evidence, is required to consider whether
the view taken by the trial court is a possible
view which could have been taken on the basis
of the evidence on record;
8.4. If the view taken is a possible view, the
appellate court cannot overturn the order of
acquittal on the ground that another view was
also possible; and
8.5. The appellate court can interfere with the
order of acquittal only if it comes to a finding
that the only conclusion which can be recorded
on the basis of the evidence on record was that
the guilt of the accused was proved beyond a
reasonable doubt and no other conclusion was
possible.”
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18. In view of the observations made hereinabove, we do
not find any reason to dislodge the findings of the learned
Trial Court Judge. In the result, the present Criminal
Appeal stands dismissed. Record and Proceeding be sent
back to the concerned Trial Court forthwith.
(GITA GOPI,J)
(J. L. ODEDRA, J)
MARY VADAKKAN
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