R/CR.A/812/2006 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL APPEAL NO. 812 of 2006

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.J. SHASTRI

1 Whether Reporters of Local Papers may be allowed
to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of
the judgment ?

4 Whether this case involves a substantial question of

law as to the interpretation of the Constitution of
India or any order made thereunder ?

STATE OF GUJARAT….Appellant(s)
Versus
SOLANKI VISARAMBHAI KALABHAI 2….Opponent(s)/Respondent(s)

Appearance:

MR LR POOJARI, APP for the Appellant(s) No. 1

MR ASHISH M DAGLI, ADVOCATE for the Original Complainant
MR MAHENDRA K PATEL, ADVOCATE for the Respondents

CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.J. SHASTRI

Date :30/08/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.J. SHASTRI)

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1. The present Criminal Appeal is filed by the State under
Section 378(1)(3) of the Criminal Procedure Code against the
judgment and order dated 28.1.2005 passed by the learned
Additional Sessions Judge, Fast Track Curt No.2, Patan in
Sessions Case No.88 of 2003, whereby the learned Additional
Sessions Judge was pleased to acquit the respondents –
accused from the offences for which they have been tried.

2. The case of the prosecution is that first informant –
Revabhai Icchabhai Chauhan, father of the deceased
Madhuben, had lodged the complaint alleging that Madhuben
(daughter) got married to one Laxmikant Solanki and was
staying in the joint family at her in-laws place. She was having
two children; one daughter named Unnati, aged about 8 years
and one son aged about 2 and 1/2 years. It was alleged in the
complaint that the victim was given mental and physical
torture on account of issue related to dowry and whenever
deceased Madhuben was coming to the house of the
complainant, she was complaining about her torture being
meted out to her, on account of insufficient dowry.

2.1 On 2.8.2003, when the father of the deceased and his
wife were returning from the market at about 6.30 p.m., one
Solanki Pravinbhai, who happened to be a practicing lawyer
along with his son-in-law, met them and informed that his
daughter Madhuben had sustained serious burn injuries and
was admitted to Mehsana Civil Hospital. Upon such
information, the first informant, his wife and two children
rushed to Mehsana where they found that daughter
Madhuben was burnt allover the body and upon asking her,

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she could not convey properly. It is also the case of the
prosecution that the complainant’s son asked her, she was
burnt with kerosene by giving gesture in affirmative. When
Dhiren asked further, as to who did all these things, the
deceased gave gesture by showing three fingers. Again when
she was asked, by giving names of the accused persons, she
gave gesture in affirmative and ultimately, on account of
serious burn injuries, she succumbed to the injuries at about
8.45 p.m. Resultantly, the complainant lodged the FIR being I-
C.R.No.108 of 2003 before the Siddhpur Police Station for the
offences punishable under Sections 302, 498A read with
Section 34 of the Indian Penal Code. Pursuant to the said
registration of offence, the Investigating Officer has collected
the material, took all steps as are required in investigation
and having found sufficient material against the respondents
accused, a charge-sheet came to be filed in the Court of
learned JMFC, Siddhpur where the same was registered as
criminal case. However, since the offence is triable by the
Court of sessions, vide order dated 4.12.2003 the learned
JMFC, Siddhpur in exercise of powers under Section 209 of
the Cr.P.C., was pleased to commit the case to the Court of
Sessions and then, was registered as Criminal Case No.88 of
2003 before the learned Sessions Judge, Patan.

2.2 After the committal, the learned Sessions Judge, Patan
executed the onward process and plea was recorded at
Exh.12, Exh.14 and Exh.15 of the respondents accused for the
offences punishable under Sections 302, 498A read with
Section 34 of the Indian Penal Code and Section 4 of the
Prevention of Dowry Act. Since the respondents accused have
denied to have committed the offence, the case was put up for

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further adjudication, wherein the prosecution has examined
as many as 37 witnesses and adduced also evidence in the
form of documentary evidence to prove the case beyond
reasonable doubt. After leading the said evidence, ocular as
well as documentary, a closure pursis was given vide Exh.326.
In the meantime, further documentary evidence in the form of
inland letters and 21 postcards were produced vide Exh.227
to Exh.248 by accused No.1 and 7 postcards and one Diwali
card were also produced by accused No.2 vide Exh.249 to
Exh.256 and 2 letters were tendered by accused Nos.2 and 3
vide Exh.261 and Exh.262.

2.3 The Court then recorded the further statement of the
accused persons as per the requirement contemplated under
Section 313 of the Cr.P.C. But in the said further statements
also, the accused persons have denied the offence being
committed and tried to explain their innocence in writing.
After the said process being completed, the issues have been
framed by the trial court and ultimately, after full-fledged trial
and after considering the entire documentary evidence as well
as oral evidence, by judgment and order dated 28.11.2005,
the trial court was pleased to acquit the respondents accused
by exercising jurisdiction under Section 235(1) of the Cr.P.C.
from all the charges for which they have been tried and it is
this judgment and order of acquittal is the subject matter of
present Criminal Appeal by the State which appears to have
been admitted by the Division Bench of this Court on
25.10.2007 and which has now come up for final disposal
before us.

3. Mr.L.R.Poojari, learned Additional Public Prosecutor,

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appearing for the State has vehemently contended that the
judgment and order passed by the trial court is not only in
conflict with the evidence on record, but reflects clear non-
application of mind. Learned APP has further contended that
serious error is committed by the trial court in evaluating the
evidence on record and the entire conclusion is based upon
surmises and conjectures. Mr.Poojari has further contended
that despite the fact that there are number of letters written
by the father indicating the torture being meted out to his
daughter . Still, however, said letters were not construed and
considered in its true spirit. Learned APP has further
contended that PW-24 – Revabhai Icchabhai Chauhan,
examined at Exh.225, who happened to be the father of the
victim Madhuben, had categorically asserted in his evidence
about the torture meted out to his daughter and the letters
which were produced on record clearly indicated the ill-
treatment and, therefore, learned APP has contended that
when such kind of evidence is available on record, the trial
court has not appreciated the same in its proper perspective
and, therefore, the order of acquittal is not justified. In
addition to this, learned APP has drawn our attention to
several other testimonies of witnesses, who have been
examined by the prosecution in the course of establishing the
case beyond reasonable doubt against the respondents
accused.

3.1 Mr.L.R.Poojari, learned APP has also tendered before us
the written submissions in detail and thereby, pointed out that
the prosecution has established the case against the
respondents accused. Learned APP has specifically contended
that Unnati, the daughter aged about 8 years, had also

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specifically narrated the incident in question which is
supported by other witnesses as well. It has been pointed out
that though the daughter Unnati (PW-7) was not declared
hostile, the cross-examination has been permitted, but the
contradiction in her evidence appears to have been proved by
evidence of PW-37, Chandubhai Rupabhai Kotada, PI of
Siddhpur Police Station and who happened to be the
Investigating Officer. By referring to this contention, learned
APP has submitted that the case is established against the
respondents accused. Learned APP has contended that PW-29

– Dr.Jyoti, examined at Exh.268, who is the Medical Officer of
Siddhpur Government Hospital and who, first in point of time,
examined the deceased, has stated that smell of kerosene was
there on the body. From the case papers which are produced
at Exh.270, this witness has deposed that if kerosene is
sprinkled on the body of the person, burn injuries of such
nature are possible. In Para.3 of her testimony, this witness
has stated that she has also treated accused No.1 –
Vishrambhai Kalabhai and in the history, it is stated that he
sustained burn injuries on account of bursting of gas cylinder,
but, the injuries which were found were on merely palms
which, on the contrary, supports the case of the prosecution
and therefore, by referring to the testimony of this witness,
learned APP has contended that this is a fit case in which the
order of conviction is deserving rather than acquittal. It has
further been contended that this evidence of Medical Officer
is supported by the testimony of PW-33 – Dr.P.P.Soni,
examined at Exh.265. It has been culled out from this
testimony that deceased Madhuben was burnt very seriously
and the Mamlatdar came to record the dying declaration. This
Medical Officer has opined that the deceased was not in a

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position to speak. This version of the doctor is rather
fortifying the case of the prosecution that accused – father-in-
law had pushed the deceased back in to the room when she
was in burn condition and, therefore, the medical evidence is
sufficiently corroborating the stand of the prosecution.

3.2 Mr.L.R.Poojari, learned APP has further contended that
the medical history which has been given by the accused
persons are self-contradictory and different versions are
coming out. As per the stand of the accused persons, the
incident in question took place because of the bursting of the
stove while preparing the tea which ultimately resulted into
burn injuries to the deceased. Now if this version is to be co-
related with the contents of the panchnama of scene of
offence produced at Exh.27, this story put up by all. On the
contrary, as per the contents of panchnama of scene of
offence, three gas cylinders were found out, of which two
were empty and one was full and that was connected with the
gas stove which was in a working condition and had not burst
and, therefore, the story of bursting of gas cylinder or the
stove is not at all getting any support, rather is falsified by the
contents of the panchnama of scene of offence, as stated
above. In addition thereto, three kerosene jars were available
on the spot, in which in a white coloured jar / can about four
ltr. kerosene was found and one plastic bag was also found in
a different colour. One burnt match stick was also found
which substantially supports the case of the prosecution. Even
the clothes which were found and collected from the scene of
offence were noticing the smell of kerosene and this
panchnama of scene of offence was drawn in the presence of
panchas and also in the presence of scientific officer, Mr.Modi

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of FSL and, therefore, the contents of the panchnama is
falsifying not only the stand of the accused persons, but
rather it corroborates the story put up by the prosecution and,
therefore, it cannot be said that the case has not been proved
by the prosecution.

3.3 In addition to that, learned APP has further contended
that PW-34 – Dr.Dipakkumar Vitthalbhai Parmar, examined at
Exh.290, has deposed that while he was discharging his duties
at Mehsana Civil Hospital as Medical Officer on 2.8.2003, one
Madhuben was brought before him, referred from Siddhpur
Community Health Center. Now, this Medical Officer has
deposed that the deceased when was brought before him, she
told that at the time of preparation of tea over the gas, she
received accidental burns injuries. This version is quite in
conflict with the version of earlier Medical Officer and the
testimony of the father of the deceased. This Medical Officer
has stated that one Kailashben was referred to Siddhpur
Community Health Center with a medical history that burns
injuries due to gas leakage, she sustained the injuries. Now,
this witness has further stated that one Champaben was also
referred to Mehsana Civil Hospital with medical history of
burn injuries received due to gas leakage, explosion of
cylinder which took place. Now, this testimony of Medical
Officer is quite in conflict with the evidence given by Dr.Jyoti,
who, first in point of time, examined the body of the deceased
Madhuben at Civil Hospital, Siddhpur and Dr.Soni, who
examined her last at the time when the Executive Magistrate
came to record her dying declaration. Therefore, as per the
say of Mr.Pujari, learned APP, the history which has been
given before this Medical Officer, namely, Dr.Dipakkumar

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Vitthalbhai Parmar (PW-34) is not believable and is in conflict
with the version earlier two Medical Officers and the reason is
obvious that this Medical Officer has recorded after the
presence of Laxmikant on the spot and, therefore, on the basis
of such untrustworthy evidence, since the trial court has
relied upon to pass an order of acquittal, the same is not
justified at all.

3.4. Mr.L.R.Poojari, learned APP has further contended that
as per the testimony of PW-36 – Bhadresh S. Shah, examined
at Exh.33, has deposed that he was discharging his duties as
Assistant Examiner of documents in FSL, Gandhinagar. It has
further been stated by this FSL Officer, who compared the
signature of letters submitted by PSI, Siddhpur which was
exhibited at Exh.304 and further it has been stated that
Exh.37 a disputed writing and Exh.90 is specimen writings are
of similar handwriting and after using his experience, this
witness has come out with an opinion that the disputed
handwritings and the specimen handwriting are of the same
person and, therefore, the entire finding which has been
assigned by the trial court is based upon no proper scrutiny of
the entire evidence on record which has been projected by the
prosecution and, therefore, since this non-consideration of
vital evidence has resulted into miscarriage of justice, the
order of acquittal based upon it is palatable and, therefore, by
referring to this, learned APP has contended that entire
cumulative effect of the evidence on record is clearly
establishing that the respondents accused have committed an
offence, for which they have been tried. Learned APP has, in
order to substantiate his arguments, has relied upon the
decision of the Supreme Court in case of Bhagwan

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Jaggannath Mankad Ors. v. State of Maharasthra,
reported in (2016) 10 SCC 357 and by referring Para.18, 20
and 30 thereof, has contended that the order of acquittal is
not sustainable in the eye of law. Hence, the same may kindly
be corrected by reversing the same.

3.5. Learned APP has further referred to one another
decision of the Supreme Court in the case of Ram Swaroop v.
State (Government of NCT of Delhi), reported in (2013)
14 SCC 235 and contended that there is no absolute rule
that police officer cannot be cited as witness and his
deposition should be treated with suspicion. On the contrary,
a due weightage is to be given to the version of the
Investigating Officer.

3.6 Yet another decision which has been referred by learned
APP is in the case of Kashmirilal v. State of Haryana,
reported in (2013) 6 SCC 595. Relying upon the said
decision, learned APP has contended that testimony of police
officials can be acted upon by the Court if found to be reliable
and police witness cannot be viewed with suspicion or distrust
on every occasion. With a view to substantiate this contention,
learned APP has relied upon yet another decision of the
Supreme Court in the case of Pramodkumar v. State
(Government of NCT of Delhi), reported in (2013) 6 SCC
588 and contended that the testimony of Investigating Officer
is required to be considered and it cannot be thrown out just
for the sake of general proposition and, therefore, after
referring to these decisions, learned APP has contended
before us that the order of acquittal is nothing but a glaring

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example of miscarriage of justice in such a heinous crime
committed by the respondents accused and, therefore, by
reversing the same, the appeal filed by the State may kindly
be allowed. No other submissions are made by the learned
APP.

4. Mr.A.M.Dagli, learned advocate appearing for the
original complainant, in support of the learned APP, has also
vehemently contended that the findings which have been
arrived at, are perverse and while passing the judgment and
order, no evaluation of evidence in detail is made by the trial
court. It has also been contended that the ocular evidence vis-
à-vis medical evidence has also been scanned properly by the
trial court. Had it been so, the trial court would not have come
to the conclusion with regard to this issue. Mr.Dagli has
further contended that there are voluminous records available
on record which would indicate the ill-treatment and some
trouble reflects to her at her in-laws place and, therefore, the
inference could have been drawn particularly when such
serious injuries are caused by the respondents accused.
Mr.Dagli has pointed out that the medical evidence is
sufficient enough to indicate the role played by the
respondents accused. It has been contended that the
treatment which has been received by Kailashben is sufficient
to indicate the presence of the accused at the relevant point
of time including one another accused also has sustained
burns injuries on palm. This medical evidence is corroborating
the case of the prosecution and that having not been
appreciated, the conclusion is perverse and further there
appears to be a manifest error in coming to the conclusion.
Mr.Dagli has further pointed out that there is inconsistency in

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the evidence of such a grave nature which would dislodge the
case of the prosecution by itself and, therefore, such a
probability which is reflecting on record indicating finger
towards the respondent – accused role in commission of
crime, the trial court ought not to have come to the conclusion
that the prosecution has not proved the case beyond
reasonable doubt. The concept of reasonable doubt has not
been properly appreciated by the trial court and, therefore,
the entire exercise undertaken by the trial court is vitiated on
account of serious non-application of mind. Learned advocate
has further adopted the stand of the learned APP and has
ultimately contended that this is a fit case in which the order
of acquittal is required to be reversed in the interest of
justice. The reasons which are assigned by the trial court, as
contended by the learned advocate, are not sufficient enough
to justify the order of acquittal passed by the trial court and,
therefore, this being a manifest error touching to the root
from exercise of jurisdiction by the trial court, such error
deserves to be corrected, in the interest of justice. Mr.Dagli
has pointed out that past grievance is also very much
reflected and supported by the evidence on record, which has
led ultimate death of the victim and therefore, this being the
position of record, it is desirable in the interest of justice not
to allow such acquittal order to be sustained in the eye of law.
Mr.Dagli has pointed out further that even from the
panchnama of scene of offence also, it is clearly reflecting that
the case put up by the prosecution is getting substantiated
and, therefore, when such a cogent evidence is available on
record, it is hardly any justification in order of acquittal and
by referring to some of the evidences, Mr.Dagli has requested
the Court to grant the relief as prayed for by the State in the

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appeal. No other submissions are made by learned advocate
for the original complainant.

5. To oppose the stand taken by the learned advocates
appearing in support of the appellant, Mr.Mahendra K. Patel,
learned advocate for the respondents – accused, has
submitted before us that the present appeal is against an
order of acquittal and, therefore, unless and until some
manifest error is visible, such order of acquittal is not to be
normally disturbed. It has also been contended that the scope
of appellate jurisdiction while dealing with the appeal is well
settled by now and, therefore, if two views are possible, the
view which has been possible to be taken in favour of the
accused is required to be adopted. Mr.Patel has contended
that the prosecution has not at all established the case
beyond reasonable doubt and there are serious infirmities in
proving the case and, therefore, merely on the basis of
suspicion, no order of conviction can be passed. It is settled
position of law, as pointed out by learned advocate, that
howsoever suspicion grave, the same cannot take place of
evidence and, therefore, here the evidence on record is clearly
indicating at the best mere a suspicion. That would not be
sufficient enough to dislodge the findings which have been
arrived at while passing the order of acquittal.

5.1 Mr.M.K.Patel, learned advocate has further contended
that even as per the medical evidence, deceased Madhuben
was not at all in a position to speak on account of serious
burns injuries and such serious injuries would clearly indicate
that person cannot speak. Still, however, there is a stiff
contradiction between the medical officers; as one doctor has

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opined that she was in a position to speak, whereas another
doctor has opined that the condition is not such whereby a
person can speak and, therefore, there is no credence
attached to the medical evidence which circumstance is
sufficient enough to justify the order of acquittal passed in
favour of the respondents – accused. Mr.M.K.Patel has further
contended that even looking to the panchnama of scene of
offence which has been drawn, it would not make it clear that
any incriminating material is visible which would connect the
respondents – accused with commission of crime. On the
contrary, on account of an attempt to save the deceased
Madhuben, Champaben – mother-in-law has passed away and
the father-in-law, who tried to salvage the situation, has
sustained burns injuries on hands and, therefore, the natural
conduct to save the deceased appears to have rightly been
appreciated by the trial court and, therefore, the conclusion
arrived at by the trial court cannot be said to be erroneous or
perverse. Mr.M.K.Patel has further contended that even the
Investigating Officer’s version if to be looked into closely,
there is no corroboration attached to establish even
panchnamas and majority panchas have not supported hostile
and became hostile and, therefore, in view of such weak piece
of evidence, it is not safe to convict the respondents – accused
in such a serious crime. Even the story which has been put up
by the prosecution is not believable more particularly when
the medical evidence is not supporting the case of the
prosecution and, therefore, by pointing out this, Mr.Patel has
submitted that the reasons which are assigned by the trial
court are sufficient enough to justify an order of acquittal.
Even looking to the testimony of Unnatiben, who is a child
witness, who is pressed into service for establishing the case

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against the respondents accused, has also turned hostile and
there is nothing incriminating is coming out from even the
cross-examination of that witness and, therefore, when
independent corroboration is not available to the case of
prosecution, it is not safe to reverse the order of acquittal
more particularly in view of settled position of law. It has been
pointed out that from the version of overall witnesses, it might
be an attempt to commit a suicide at the best and when the
respondents accused have tried to save her from the burns
injuries, might have received injuries and, therefore, it cannot
be said in any way that they are responsible for committing
such a crime. The natural conduct to save her from the burns
injuries, take her to the hospital with immediate effect, giving
treatment of whatever possible nature, are such relevant
circumstances which are lean in favour of the respondents
accused. Mr.M.K.Patel has further contended that even the
written arguments which have been submitted by the
respondents – accused more particularly even the explanation
which has been reflected from the further statement under
Section 313 of the Cr.P.C., the version of the respondents
accused is consistent that they have tried to save her from the
burns injuries and, therefore, entire prosecution story is got
up and stated only with a view to frame the respondents
accused, and the case is tried to be made out. It has further
been contended that the evidence which has been led by the
prosecution is not at all sufficient enough to hold the
respondents accused guilty of murder i.e. offence of Section
302 of the IPC. Even the children , after the death of deceased
Madhuben, are being nourished at the place of respondents
accused which would amply make it clear that there is no
justifiable reason to hold the respondents accused as guilty.

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Valid reasons are assigned by the trial court to indicate that
the respondents are not responsible for commission of crime.
Mr.M.K.Patel has then contended that there was absolutely no
motive behind the crime and the deceased was not of such
weak minded person, who can just been overpowered by the
respondents accused. On the contrary, she was a literate lady;
there was no economic crunch in the family and the
background of the deceased was such that in no case, the
guilt of the respondents accused can be inferred. Majority of
almost all panchas have turned hostile and as many as 16
witnesses have not been examined out of 59 as is reflecting
and the version of Revabhai, father of the deceased
Madhuben, is not trustworthy and the evidence of the child
witness is not substantiating any further and, therefore, on
the basis of such kind of evidence, the order of acquittal is not
justified to be reversed, as has been contended by
Mr.M.K.Patel. Learned advocate has further contended that
the charge is that of Section 302 and not of Section 306 at all
and there was no opportunity to the respondents accused to
face and defend themselves for another alternate charge of
Section 306 of the IPC and, therefore, in such a situation
where the prosecution has not made any attempt to establish
the case beyond reasonable doubt and when the order of
acquittal is supported by cogent and valid reasons, the appeal
against an order of acquittal in view of settled position of law
may not be entertained and ultimately, it has been requested
to dismiss the appeal filed by the State. No further
submissions are made by learned advocate.

6. Now, in view of the above-mentioned submissions made
by learned advocates appearing for the respective sides, if the

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judgment and order of acquittal is to be viewed, the trial court
appears to have assigned the reasons that no material is
justifiably led to indicate that there was any torture or mental
ill-treatment to the deceased Madhuben in her in-laws place.
The trial court has also found that there were several
contradictions between the testimony of witnesses including
Revabhai, father of the deceased and the Investigating Officer
about the occurrence. The trial court has also found that there
is no explanation offered about the chronology of drawing the
panchnamas of scene of offence, one by the Investigating
Officer and another by the Scientific Officer. Further the trial
court has also found it very suspicious that by merely gesture
the deceased might have pointed the finger towards the
respondents, as has been tried to be canvassed. The trial
court has also found that the only eye witness to the incident
in question is a child witness – Unnatiben, who has not
supported the case of the prosecution and has turned hostile
and, therefore, the most important witness has not supported
the case of the prosecution in any manner. Therefore, overall
analysis of the evidence on record has led the trial court to
believe that the prosecution has not established the case
beyond reasonable doubt. The trial court has also found that it
is not safe to accept the contention of the prosecution that
since murder is not possible to be believed, it should be
treated as a case of suicide. The trial court has also found that
both the murder and the suicide are altogether different
offences and, therefore, simply because if one is not
established, another cannot be switched over. In fact, the trial
court found that there is no material sufficient enough to
indicate the ill-treatment, torture, demand of dowry and in
addition thereto, the demand of Rs.1 lakh which is tried to be

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made out as a ground, no such circumstance is visible in any
corner of the complaint so cogently and, therefore, the entire
case found to be suspicious by the trial court.

7. Now, in the light of aforesaid situation when a clear
stand is taken by the prosecution that some important
evidences have not been appreciated in its proper perspective
and the conclusion arrived at by the trial court is perverse and
the order is laconic, we have to undertake an exercise of
analyzing the evidence to come to a conclusion whether the
findings arrived at by the trial court appears to be justified or
perverse to the record and for that purpose, in brief, we may
analyze the evidence to test the validity of reasons which are
supporting the order of acquittal which is impugned in the
present appeal.

8. Our perusal of the paper-book compilation which is
consisting of ocular as well as documentary evidence, we
found that at Exh.12, a specific charge was framed against the
respondents accused by the trial court on 13.4.2004 of
Section 302 read with Section 34 of the IPC and in that
context, the prosecution appears to have led the evidence.
Since, substantially all the panchas have become hostile, the
testimonies of those have become irrelevant as nothing
contrary is found from even their cross-examination and,
therefore, straightway, PW-24 has become relevant for the
purpose of ultimate consideration along with the testimony of
PW-27, a child witness.

9. PW-27 – Revabhai Ichhabhai Chauhan, examined at
Exh.225 by the prosecution is the father of deceased
Madhuben, who has deposed before the Court that deceased

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Madhuben had married to Laxmikant Vishrambhai Solanki in
the month of May,1990. At that time, he was serving as
Primary Teacher in Saurashtra and the father-in-law of
deceased Madhuben was serving in Health Department at
Khedbrahma. Accused No.3 – Kailashben, who happened to be
the sister-in-law of deceased Madhuben and when the
marriage had taken place, all family members were residing
together. It has been asserted in the deposition further that
when the marriage had taken place, deceased’s education was
on and the marriage had been organized after her
examination of FYBA. But during leave and vacation, the
deceased was going to her in-laws place and so long as her
study continued, she remained with the father. After 1993, the
education got completed and thereby, she was continuously
residing at in-laws place. But whenever she was coming to his
house, this witness has stated that there was a torture, there
was taunting made to her that your father is a beggar as have
not given sufficient dowry, though Laxmikant is the only son
and thereby, in addition to taunting language, she was also
beaten and tortured physically as well. This witness has stated
further that on several occasions, he went to in-laws place and
requested with folded hand not to torture her. In 1995 on
Diwali occasion, this witness had brought the deceased to his
place and was to be returned to her in-laws place after
Diwarli. But by that time a letter was written by Vishrambhai
i.e. father-in-law that they do not want Madhuben to reside
with and want to give divorce. It was also written that there is
no faith continued in her and, therefore, since there were
three such letters came from Vishrambhai i.e. one of the
accused, this witness has not sent deceased Madhuben to in-
laws place. Even in October,1995 and November,1995, son-in-

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law has also written such kind of letters that they do not want
Madhuben any longer and reiterated that there is no faith
continued in her and even if she will be, they will not accept.
In such a situation, this witness has stated that for a period of
4 years, deceased Madhuben was residing with him only.
During this tenure, there were several letters came for giving
divorce and if she will be sent, she would be done away and
there were 4 such letters were handed over by this witness to
the police authority for onward investigation. Exh.34 to
Exh.37 are such postcards which have been given and written
in the handwriting of Vishrambhai and, therefore, this witness
has stated that there was ill-treatment, taunting and abusive
language and in addition thereto, there was physical and
mental torture to her daughter by these respondents accused.
This witness has categorically stated that when on receipt of
information, they rushed down to the hospital and the
deceased Madhuebn had by showing three fingers and by
nodding head in favour, had clearly indicated when asking
whether these accused persons were there at commission of
crime or not and that was sufficient indication given at the
last moment while dying in the hospital on account of serious
burns injuries. This witness has stated that there was a smell
of kerosene coming out of the clothes of the deceased and
when the cremation was taking place at that time the
Siddhpur police came to Muktidham Crematorium and
complaint was taken which is M.35/2. The narration had been
made as to how the deceased was persuaded to come inside
the room where the child witness was doing her home work.
In the testimony of this witness, a narration is made further
as to how sister-in-law and grandmother poured kerosene on
deceased Madhuben and how the father-in-law was standing

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in the middle of door with kerosene tin. The sister-in-law had
ignited the match stick and at that time, father-in-law gave
push to the deceased while she was trying to come out on
account of burns injuries and thereafter, deceased picked up
the mother-in-law and that is how the incident had taken
place. In cross-examination of this witness, it is revealed that
the letters are written by Vishrambhai sent through post
which are part of the investigation material. It is also coming
out that on 14.12.2002 there was a mis-carriage on account of
which she was taken to the hospital at Siddhpur. It has also
been pointed out in deposition of this witness that deceased
was ready to join the services, whereas in-laws were not ready
for that. This witness has stated in cross-examination that
they belong to Rohit Samaj and there is a written constitution
of their caste in which there is a rule that no dowry is to be
exchanged. It has been pointed out that one Pravinbhai
Govabhai Parmar, who is a practicing lawyer has given the
message about the fact of deceased sustained burns injuries
at around 7.45 p.m. in the evening and they rushed down to
the hospital. This witness has further stated that till the
deceased died in their presence, no doctor had come forward
nor any nurse had come and after half an hour, the deceased
died. Till she died, she was in a conscious state of mind, but
not was in a position to speak. The cross-examination has
further indicated that accused No.1 had noted down before
the police that on account of bursting of gas cylinder, the
accident had taken place. Further cross-examination of this
witness has indicated that some of the letters were torn since
there was abusive language in it. But ultimately they were
demanding divorce and had given threat that if she will be
sent, they will finish her and that has exactly happened as per

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the say of this witness. The overall analysis of evidence of this
witness is indicating that there is some sort of trouble to the
deceased at her in-laws place.

10. The next witness which is heavily tried to be relied upon
to sustain acquittal by learned advocate for the respondents –
accused on the premise that she has turned hostile and is a
child witness. Now, narration of this deposition is indicating
that in chief examination, this witness has stated that on
second day, the family members were interacting that
grandmother and sister-in-law had also sustained injuries and
had been taken to the hospital and at that time, the father of
this child witness was at Patan for his advocate practice. This
child witness has been declared hostile by the prosecution.
Therefore, from the record this main testimonies of the father
and daughter of the deceased is not revealing much support
to the case of the prosecution. However, from their
testimonies, some sort of trouble to the deceased at in-laws
place is emerging and, therefore, with a view to ensure
whether the findings are correct or vulnerable, we have
further chosen to examine independent witnesses like medical
officers in co-relation with the documentary evidence.

11. We have seen from record PW-29 – Dr. Jyotiben,
examined at Exh.268, who was serving as Medical Officer at
Siddhpur Government Hospital on 2.8.2003 when at about
4.30 p.m. in the evening the relatives of the deceased
Madhuben brought her for treatment and it was opined by
this Medical Officer that at that point of time, she i.e.
deceased sustained injuries on face, as such she was not in a
position to speak, however, she was in conscious state of
mind. The deceased was taken to the hospital by the in-laws

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and relatives where they gave the history before this Medical
Officer that burn injuries were sustained on account bursting
of gas cylinder. As many as 70% burns injuries were sustained
by the deceased on various parts of the body, substantially on
the upper portion of the body covering lips, face and cheek
and, therefore, by examining this Medical Officer who has
opined that the condition of the deceased was critical and
further emerging that smell of kerosene was coming out from
the clothes and, therefore, as per the opinion of this Medical
Officer, who first in point of time, examined the deceased,
opined that if sprinkling of kerosene has taken place, such
kind of burns injuries are possible and might have been. On
account of this incident, Vishrambhai, one of the accused, i.e.
father-in-law, was also brought for the treatment and this
father-in-law had given the history that burn injuries had
taken place on account of bursting of gas cylinder and he
sustained burns injuries on fingers of both the hands and such
injuries were simple in nature. At about 5.30 p.m. on that very
day, before this Medical Officer, Champaben was also
brought, who happened to be the mother-in-law of the
deceased, who herself gave the history as was in conscious
state of mind and was suffering from first to second degree
burns injuries. At about 5.30 p.m., sister-in-law, Kailashben V.
Solanki, was also brought where upon examination, the
Medical Officer found that she sustained burns injuries on left
side hand and the burns were of first degree and the injuries
were not serious in nature. At about 6.00 p.m. in the evening,
all these patients were referred to the Mehsana Civil Hospital
and there was likelihood of condition getting worse of
deceased Madhuben. The cross-examination of this Medical
Officer is indicating that normally, in such a situation, pain

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reliever injection either of Methadone or Morphea to be
administered, but no such injections were given and only pain
killer dycloran was administered. Nothing much comes out
from PW-30 – Somabhai, who happened to be a jeep driver.
But in cross-examination it has been indicated that when
deceased Madhuben was taken from Siddhpur Government
Hospital in ambulance to Mehsana, both advocates
Nareshbhai and Ravibhai and advocate husband of deceased
were inside.

12. The prosecution case is yet rest on another testimony of
PW-31 – Dr.Rajeshkumar Ramswaroop, examined at Exh.280.
This wintess was serving as Medical Officer in Asha Surgical
Hospital at Siddhpur where accused No.3 Kailash was
brought before him. It has been stated by this Medical Officer
that at around 3.00 p.m. in the afternoon, Kailashben was
brought before him for treatment as she stated to have
received accidental burn injuries and after giving pain killer
injection as a primary treatment, she was advised to take to
the Government Hospital. After this accused No.3 –
Kailashben, within a shortwhile, Champaben was also brought
for the treatment by stating that she also sustained burns
injuries on account of accident. There also, after giving
primary treatment, she was advised to take treatment in the
Civil Hospital. The history about the accidental burn is
mentioned by this Medical Officer as it has been conveyed by
the family members, who came along with the patients. The
third patient was at a ground floor of the clinic as stated by
the compounder, but without examining or treating the third
one, all have been sent and referred to the civil hospital. In
cross-examination, this Medical Officer has stated that before

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the police authority, it was stated by him that respondent
No.1 – Vishrambhai had received burns injuries on fingers on
hand on account of stove getting burst. But this deposition
reveals that third patient – deceased Madhuben was never
admitted here for treatment nor any attempt was made to
treat her.

13. Yet another Medical Officer who is relevant to the case
is PW-33 – Dr.Pravinkumar Popatlal Soni, examined at
Exh.285. This Medical Officer had undertaken the postmortem
of the dead body of deceased Madhuben where he found that
entire body was stiff and burn injuries were to the extent of
85% of second and third degree on various parts of the body.
This witness has stated in his deposition that prior to about
one hour from death, he himself had treated this deceased
and at about 8.15 p.m. on 2.8.2003 when she was brought
before him, her condition was critical, but was in a conscious
state of mind. However, she was unable to speak. The Chief
Examination of this Medical Officer is indicating that when at
8.15 p.m., the Mamlatdar had come for taking the dying
declaration, the deceased was in unconscious state of mind. It
has also been mentioned by the Mamlatdar in writing and
ultimately, at 8.05 p.m. the deceased succumbed to the
injuries. The cross-examination of this Medical Officer is
indicating that treatment was given to her where several
relatives of patient, about 8 to 10 in numbers, were also
present.

14. Yet another witness Pw-34 – Dr.Dipakkmar Vitthalbhai
Parmar was also examined by the prosecution at Exh.290.
This Medical Officer has deposed that on 2.8.2003 at about

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6.50 p.m. in the evening with a reference note from Siddhpur
Health Center, one Madhuben Laxmikant had been brought
and she was admitted in burns ward and thereafter, the
treatment was started. The testimony of this Medical Officer
is indicating that when deceased Madhuben was brought
before him, she was in conscious state of mind and on asking
as to how she received burns injuries, she replied that while
preparing the tea on gas, she received such injuries at about
3.00 p.m. at village Nedra. This Medical Officer has
categorically stated that it is not always happening that the
patient who sustained burns injuries about first to third
degree on face, is unable to speak and has further stated that
she had succumbed to the injuries at 9.05 p.m. in the night.
This witness has further stated that accused No.3 Kailashben
Vishrambhai was also brought on that very day at about 7.10
p.m. with a reference note from C.H.C., Siddhpur and the said
patient was conscious and had given the history while taking
primary treatment that on account of gas leakage and while
preparing the tea on stove, fire broke out and ultimately she
received the injuries. For further treatment, she was sent to
Civil Hospital at Ahmedabad on 11.8.2003. But this accused
No.3 had received in total approximately 30% burns injuries.
At about 7.10 p.m. one another patient Champaben, who
happened to be the mother-in-law of the deceased, was also
brought with a reference note of CHC Siddhpur. This patient
named Champaben was in conscious state of mind and overall
had received 50% burns injuries and had given the history
that on account of gas leakage, while preparing the tea on
stove, fire broke out which resulted into burn injuries. This
Medical Officer has stated the history on the basis of the case
papers which were brought before him. It has been clarified

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by him that this witness has not stated that on account of
preparation of tea on stove, burn injuries had taken place. In
cross-examination, this Medical Officer has stated that
deceased Madhuben herself had given the history and the
same was recorded. Since the deceased sustained 90% burn
injuries, the medicines were not having any positive effect and
she ultimately died at 9.05 p.m. This Medical Officer was
there upto 8.00 p.m. in the clinic and then, charge was taken
over by Dr.P.P.Soni. The deceased Madhuben was brought by
her husband Laxmikant and was present. Further cross-
examination has revealed that after the history which had
been recorded in the ward which was given by deceased
Madhuben, after 8.00 p.m. there was no occasion for him to
go to the deceased at any time and, therefore, overall analysis
of this Medical Officer who recorded the history, has opined
about the injuries and gravity of it and also deposed about the
treatment which had been meted out.

15. In the context of these testimonies of Medical Officers,
who treated the deceased and other accused persons, the
story put up by the defence is how far justifiable can be
examined from other part of evidence i.e. panchnama of scene
of offence, evidence of Investigating Officer as well as the
evidence of the Scientific Officers and the related
documentary evidence and for that purpose, we have
undertaken such examination also though this appeal against
the order of acquittal but, as we are duty bound to find out
whether the findings are germane to acquittal or not. Hence,
further examination of evidence considered by us hereunder.

16. From further perusal of the documentary evidence on

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record, it transpires that to some extent serious efforts have
been made by the prosecution to take in aid some of the
documentary evidences to prove the case and from that
examination, if we peruse the panchnama of scene of offence,
which is at Exh.27 drawn on 03.08.2003, which indicates that
house belonging to Solanki Vishrambhai Kalabhai appears to
be of a Pakka construction. On the eastern side of the wall,
one small room is situated in which three gas cylinders were
lying out of which two were empty and one was attached to
gas-stove and is in a working condition. The gas pipe attached
to the stove is not damaged as found and on the western side
of wall an iron cot was lying. In that small room, three
different coloured of canes i.e. blue, yellow and white were
lying. On opening such bottles / canes, smell of kerosene was
emerging and as one cane was filled in with 500 gm of
kerosene whereas another cane was containing approximately
four liter of kerosene. In addition thereto, one plastic bag was
also found and pieces of different coloured bangles were
spread over on the floor of the room. It was also found that
one bag consisting of urea and pesticides was also lying and
the same was to some extent burnt. On the floor of the room
one bed is lying of which cover is found burnt wherefrom
kerosene smell was generating. It was also found that near
the wooden cupboard, one half-burnt matchstick was also
found and the burnt pieces of cloths were found. However, it
was found that at the place of incident, the wall and the roof
were not found to be of any ashes of burns. The Investigating
Officer has executed the videography, collected the material
and sent it for analysis. This panchnama appears to have been
executed immediately on the next day of occurance. There is
one another panchnama, which is an inquest panchnama

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drawn on 03.08.2003, at Exh.30, wherein also some narration
has been made of the burnt injuries of the deceased. It was
found in the Inquest Panchnama that several parts of the body
were burnt. The mouth portion, which was half opened, was
visualised by the officer. Both hands have been found burnt
right from shoulders upto the palms of both hands, both legs
upto knees have also been found burnt, however, the feet and
the lower portion of the legs have not been burnt as found
during the said panchnama. There were no injuries on private
parts of the deceased and the father viz. Revabhai
Ichchhabhai Chauhan, who happened to be a retired teacher,
has identified the dead body. There are no other marks of
injuries on the dead body of any attack or physical assault.
The narration of cause of death reflecting in this Inquest
Panchnama is on account of burn injuries. Another
panchnama appears to have been drawn at Exh.32, which is a
panchnama related to the clothes of the deceased and some
letters, which have been made part of the record. As being
indicated that there were some heart burning circumstances
amongst the family members in some of the communication, it
has also been found loss of faith in deceased by the in-laws
and these writings ofcourse are indicating some sort of
trouble between the families.

17. The record further reveals that one another panchnama
appears to have been drawn, which is at Exh.87 with respect
to physical condition of Champaben Solanki, wife of
Vishrambhai Kalabhai happed to be the mother-in-law of the
deceased, who also sustained burn injuries on account of the
fact that deceased had scolded her when she was in a burnt
condition. Large number of letters appears to have been on

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record but it appears that the same have been exchanged in
or around the year 1995. The history which has been recorded
with respect to accused Vishrambhai, who also sustained burn
injuries and the said document at Exh.269 reflecting on
page:1073 has indicated that first degree burns are sustained
at the hand and that has been on account of blast out of gas
cylinder. At Exh.270 on page:1077 of paper-book compilation,
there appears to be one another document related to
Madhuben Laxmikant Solanki, in which it has been stated that
burns at home as conveyed by relatives and that has been
recorded at about 4:30 p.m. on 02.08.2003 and the patient
stated to be conscious but was unable to speak due to burn
injuries. The certificate regarding this is at Exh.271 attached
at Page:1081 of paper-book compilation wherein also it has
been categorically stated that the patient is conscious but
unable to speak due to burn injuries on her mouth and face.
Now this is the certificate issued by the Medical Officer, CHC,
Sidhpur Hospital. This very Medical Officer appears to have
issued one another certificate at page:1083 with regard to
injuries sustained by Vishrambhai Solanki in which it has been
stated that first degree burns are on both hands sustained by
him at home and this history has been given by himself. Yet
another certificate with respect to Champaben, the mother-in-
law of the deceased, who also sustained injuries, and said
certificate is attached at Page:1085 of paper-book
compilation, wherein she appears to have sustained first and
second degree burns over various parts of body which are
enumerated in the certificate. In the similar way, yet another
certificate issued by the very same Medical Officer, CHC,
Sidhpur with regard to injuries sustained by Kailashben
reflecting on page:1087 in which also for further treatment

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the patient was referred to. Champaben Vishrambhai Solanki,
the mother-in-law, who passed away, whose postmortem
examination was undertaken at Civil Hospital, Ahmedabad
and the opinion which has been given about cause of death is
shown as shock due to septicaemia due to burns. The
postmortem note with regard to the mother-in-law of the
deceased Champaben Solanki is at Page:1091.

18. The paper-book compilation is further attached with the
report of the Forensic Science Laboratory Officer who found
some of the articles from the scene of offence. On page:1123
there appears to be a postmortem note of Madhuben – wife of
Laxmikant Vishramdas Solanki, the victim and column no.17
of the said postmortem note is indicating the burn injuries to
the extent of 85% as narrated, however, no other injury marks
are found in the said postmortem note. In column no.20, her
windpipe was found congested having presence of carbon
particles and cause of death, which is reflecting in column
no.23, is shown to be shock due to extensive burns. There
appears to be a certificate dated 02.08.2003 issued by
Dr.D.X.Parmar, Medical Officer, General Hospital, Mehsana,
which shows that she was initially treated by Medical Officer
CHC, Sidhpur. This doctor has examined and taken history of
the deceased and in the history given by Madhuben herself,
she has stated that at around 3:00 p.m while she was
preparing tea on gas, she sustained burn injuries and the said
burn injuries caused to her were to the extent of 1st to 3rd
degree on various part of her body as indicated in this
certificate, which is reflecting at page:1143 of paper-book
compilation. Now these documentary evidences and the
medical papers are indicating that deceased Madhuben

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sustained burn injuries at the house of the respondents
accused and the history which has been given at the initial
stage is that on account of preparation of tea on gas stove the
deceased sustained burn injuries. The other documentary
evidence appears to be related to the treatment given to the
deceased but these documentary materials indicating that the
deceased was taken to CHC, Sidhpur first and then was
referred to Mehsana General Hospital. It is reflecting from
these papers that substantial version which is reflecting is
that while preparing tea at the gas-stove some problem arose
on account of which deceased sustained burn injuries. Now
further examination of documentary evidence is in the form of
Station Diary at Exhs.322, 323 and 324 of paper-book
compilation wherein the entry which is at Serial No.13
recorded on 16:40 hrs is the entry related to this episode and
one another, which is reflecting at Serial No.16 recorded at
about 17:45 hrs, is also related to the present case. At
page:1273 of paper-book compilation a list of documents have
been furnished at Exh.327 which is indicating that some of the
letters, which have been written by the deceased Madhuben,
are made part of the record and therefore on the overall
analysis of these documentary material, it is emerging that
the history has been given by the deceased herself indicating
that while preparing tea on the gas-stove she sustained burn
injuries and that has been substantiated by other entries as
well. However, be that as it may, on careful consideration of
further material, it is noticing before us these documentary
material have also appear to have been considered and
examined by the learned trial Judge. It is also appearing that
some explanation in writing has also been given by the
original accused No.2 Laxmikant Vishrambhai, which is at

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Page:435 of the paper-book compilation, and if we see the
additional evidence, the allegations are completely denied and
it has been reported that Madhuben while preparing tea on
gas-stove, on account of leakage accidentally sustained burn
injuries as nearby gas-stove one kerosene stove was lying.
This is the position of the evidence on record with regard to
oral as well as documentary evidence from which the learned
judge has passed an order of acquittal. Our careful
consideration of the aforesaid material reveals that some of
the circumstances are not possible to be ignored while
evaluating the stand of either side and such circumstance
which we may enumerate hereinafter.

18.1 The charge which has been framed against the
respondents accused on 13.07.2004 at Exh.12 is that for the
purpose of getting dowry and for getting divorce, by giving
torture these respondents accused have set on fire the
deceased Madhuben and thereby committed offence of
Section 302 read with Section 34 of the Indian Penal Code
and close reading of the same is indicating that this charge is
against the respondents accused Nos.1 and 3.

18.2 From the testimonies of panch witnesses majority
of them have chosen not to support the case of the
prosecution and have indicated that wherever the
Investigating Officer has asked them to put their signatures
they had put their signatures. On the contrary, one of the
panch witnesses viz. V. Kaluji, P.W. No.9 has categorically
stated that it has not happened that he was called out at
village Nedra for drawing panchnama and some letters
around 36 in numbers were collected. Prosecution Witness

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No.10 viz. Bhimabhai Bharabhai, who is yet another Panch
Witness examined at Exh.40, has also not supported the case
of the prosecution and in the same way other panch witnesses
have also chosen to turn hostile and therefore nothing
concrete comes out from testimonies of panch witnesses from
the record.

18.3 The father of the deceased, who is examined at
Exh.225 as Prosecution Witness No.24 viz. Revabhai
Ichchhabhai Chauhan, who rushed down to the hospital where
deceased Madhuben was admitted for treatment. However,
from his detailed evidence, an attempt is made to prove the
charge of dowry but then from his testimony, no material
regarding dowry is being reflecting. The entire narration is
banked upon the letters which are of the year 1995 around
said to have been exchanged between the families and has
indicated that when he went to the hospital, since deceased
Madhuben was not in a position to speak, she pointed out
three fingers on asking as to who caused her burnt injuries.
Now this testimony of the father about ill-treatment and the
narration of incident how it has occurred is not getting
substantiated independently as there is no eye witness to the
incident in question and therefore in absence of any
corroboration this solitary evidence is not safe to convict the
respondents accused and reverse their acquittal into
conviction. In cross examination of the testimony of this
witness, an assertion is made that the deceased was in a
conscious state of mind and has indicated misdeeds of these
three accused persons but it has been reiterated that the
deceased Madhuben has pointed out only three fingers when
she was asked as to who caused this trouble to her. The entire

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evidence is the obvious gestures of a father but then his
evidence is to be read and applied in the context of other
material which have whether supported his version.

18.4 Another ocular evidence in the form of Prosecution
Witness No.27 viz. Unnatiben Laxmikant Soalnki, who is
daughter of the deceased, aged about eight years, is examined
at Exh.266. She narrated that nearby persons were discussing
that her mother and grand-mother and sister-in-law have
sustained burnt injuries but then this witness has not
supported the case of the prosecution and is declared hostile
by the prosecution and, therefore, nothing much turns out
from version of this witness.

18.5 As far as medical evidence is concerned, the
injuries which have been caused by the deceased Madhuben
Prosecution examined Dr.Jyotiben Premprakash Gomvar as
Prosecution Witness No.29 at Exh.268. This Medical Officer,
who treated the deceased stated that deceased sustained
about 70% burnt injuries over the body i.e. on lips, chick, face
and almost entire head is burnt. The possibility of burn
injuries on account of pouring of kerosene cannot be ruled out
as opined by this Medical Officer. Still in the history it has
been mentioned that on account of gas-stove, which was
burst, this incident took place and injuries caused to the
deceased. In the cross examination, she has stated that no
injections were applied like Methadone or Morphia and only
pain killer was given while referring to another hospital and
therefore this evidence is suggesting the mere possibility of
sustaining burnt injuries by pouring of kerosene. But at the
same time, this Medical Officer has also examined deceased

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Champaben, mother-in-law, who also sustained serious
injuries and her condition was also critical. This appears that
an attempt might have been made to save the deceased or the
deceased herself caught while sustaining burn injuries.
However, in the absence of any material cogent enough, it is
not possible to jump to a conclusion that serious injuries
received by mother-in-law, on account of that possibility of
making an attempt to save the deceased from burn injuries
might have also resulted into injuries caused to the mother-in-
law and, therefore, this lack of evidence clear enough that it is
not possible believe so cogently that the deceased might have
got burn injuries while setting the deceased on fire.

18.6 From another testimony of Dr.Rajeshkumar
Ramswarup Bhargav, Prosecution Witness No.34 at Exh.280,
who appears to have examined Kailash Parmar, the sister-in-
law, and thereafter appears to have examined Champaben,
the mother-in-law and at that point of time the history which
has been given is that, on account of bursting of stove burn
injuries have been sustained. In cross-examination, this
Medical Officer has stated categorically that in police
statement it has been asserted that Vishramdas also sustained
injuries on account of bursting of primus. But this Medical
Officer appears to have not examined the deceased and
therefore there appears to be no clear indication in the history
recorded by the Medical Officers that these respondents
accused have poured kerosene and set her on fire. In the
context of this evidence, if we further go through the evidence
of Dipakkumar Vitthalbhai Parmar, Prosecution Witness No.34
at Exh.290, there also the history has been recorded wherein
the deceased Madhuben had categorically indicated that on

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account of preparation of tea on gas-stove she sustained burn
injuries and this Medical Officer has stated categorically that
deceased was in a conscious state of mind. The further
examination is indicating from the testimony of this Medical
Officer that in the history recorded by him there was a
reference that due to leakage of gas which came into contact
with the gas-stove while preparing the tea, the gas-stove burst
at around 03:00 pm. Now in contrast to this, there appears to
be no material available and this Medical Officer has
remained in Ward upto 08:00 pm where after admission of
Madhuben he had no occasion to visit deceased Madhuben.
On the contrary, history is reflecting about accidental burn
injuries and there is no reference with regard to pouring of
kerosene by respondents accused and setting on fire the
deceased.

18.7 One another circumstance which is not possible to
be ignored is that there is a specific explanation given by the
accused No.2 Laxmikant Vishramdas in further statement that
while preparing tea on gas-stove there was leakage of gas
wherein the kerosene stove was lying and on account of which
burn injuries have been sustained by the deceased. Now this
explanation is being offered by accused No.2 Laxmikant
Vishramdas, who undisputedly was not there at the time of
occurrence of incident and as against that the immediate
conduct appears to be natural of accused nos.1 as well as 3
and mother-in-law Champaben who died as well on account of
sustaining burn injuries and all the three immediately had
gone for medical treatment and therefore it appears that on
account of occurrence immediate steps to give treatment is
reflecting from the record and in addition thereto the

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possibility cannot be ruled out that to salvage the situation an
attempt might have been made to save the deceased
Madhuben and resultantly the accused have also sustained
burn injuries. However, be that as it may, there is no other
clear cogent material to raise any adverse inference against
the respondents accused.

18.8 Even the testimonies of the Scientific Officers i.e.
Mr.Hashmukhlal Modi, Prosecution Witness No.32 and Shah
Bhadresh Sevantilal, Prosecution Witness No.36 have also
been pressed into service. However, the testimony of
Prosecution Witness No.32 Mr.Hashmukhlal Modi indicates
that no stove is seen by him and there was no signs about
bursting of stove and if sprinkling of kerosene or bursting out
of kerosene stove has taken place there might be marks
related to which are not found by the said Scientific Officer.
The another Scientific Officer, Prosecution Witness No.36,
was examined for the purpose of ascertaining the similarity of
writings in the letter but then there appears to be no other
concrete material which can substantiate the incident in
question in the manner posed by the prosecution.

18.9 The narration of the testimony of the Investigating
Officer is also that the history which has been recorded may
not be correct but then the Medical Officers, who are
independent witnesses, have recorded the history in the
manner in which it has been reported to them and therefore
no much reliance can be placed on this issue of testimony of
Investigating Officer. Further, the Executive Magistrate has
come to record the Dying Declaration of the deceased
Madhuben at about 08:55 pm. but then from the investigation

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it is revealed that when the said Executive Magistrate came,
the deceased Madhuben was unconscious and therefore no
Dying Declaration was possible to be recorded and further as
per the medical evidence on account of injury she was not
able to speak at all and therefore an uncorroborated
testimony of father about showing three fingers by the
deceased cannot be banked upon to establish the guilt of
respondents accused.

18.10 Even the scene of offence panchnama is also
reflecting no burn marks on the floor or on the ceiling of the
room. If burn injuries have been reflected of such a nature
then obviously some burns marks or ashes might be reflecting
but no such indication is emerging from the scene of offence
panchnama as well and therefore it appears that there
appears to be no concrete material to believe the offence
being committed in the manner in which prosecution has
suggested. Even the child witness is also not supporting the
case of the prosecution which would clearly indicate that
there is no reasonable probability to establish the guilty of the
accused.

18.11 From the overall analysis of ocular as well as
medical evidence vis-a-vis documentary evidence there
appears to be not a case which can be said to be proved
beyond reasonable doubt, by prosecution side.

18.12 The letters which are substantially of the period
around the year 1995 may be raising some doubt about
unhealthy relationship at the relevant point of time but then
the same cannot be assumed to be a circumstance solely upon

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which conviction can be ordered, more particularly when the
marriage span was of around 13 years.

18.13 Yet another circumstance which cannot be
unnoticed is that the children of the deceased are at the in-
laws house i.e. at the place of the respondents accused and
there was a marriage span of 13 years. From the over all
material on record, it is not possible to jump to the conclusion
that beyond reasonable doubt the prosecution has proved its
case against the respondents accused and it is settled position
of law that howsoever suspicion is there but the same cannot
take place of evidence and therefore this sketchy
uncorroborated evidence is not clearly pointing out fingers
towards the respondents that it is their act only which has
caused death of deceased Madhuben. On the contrary, the
respondents accused have also sustained burn injuries and
the mother-in-law has also expired on account of burn injuries
and therefore there are all possibilities that some accident
might have taken place which probability cannot be ruled out.
Hence, there appears to be no un-impeachable material to
establish the guilt of the respondents accused so safely in the
present set of circumstance.

19. We are mindful of the fact that we are dealing with an
appeal against the order of acquittal and the normal
parameters which are prescribed by the catena of decisions of
the Apex Court and the observations thereof which would lead
us to believe that there appears to be no manifest error
committed by the learned trial Judge in passing an order of
acquittal. The reasons assigned by the learned judge are also
not such which can be said to be perverse or reflects any

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manifest error while deriving a conclusion.

20. In view of settled position of law we have even re-
appreciated and reconsidered the evidence while exercising
appellate jurisdiction, but we found that overall analysis
indicates that there are no sufficient and compelling reasons
to dislodge the findings of acquittal which would permit us to
substitute the view taken by the learned trial Judge. In view of
the following propositions of law on the issue as to what are
the factors to be considered while dealing with an appeal
against the order of acquittal, we have applied our mind to the
evidence on record even independently and co-related with
this proposition of law. We found that there are no reasonable
ground on which the findings of the acquittal is possible to be
dislodged and some of the relevant extracts of decisions of
Honourable Apex Court, which we have considered, we deem
it proper to enumerate hereinafter.

21. In case of State of Haryana vs. Shakuntla and others
reported in (2012) 5 SCC 171, the Apex Court has observed
in paras:51, 52 and 53 as under:

” 51. In Chandrappa v. State of Karnataka this
Court 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

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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 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.”

52. In C. Antony v. K.G.Raghavan Nair, this Court
held:

“6. This Court in a number of cases has held
that though the appellate court has full power to
review the evidence upon which the order of
acquittal is founded, still while exercising such
an appellate power in a case of acquittal, the

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appellate court, should not only consider every
matter on record having a bearing on the
question of fact and the reasons given by the
courts below in support of its order of acquittal,
it must express its reasons in the judgment
which led it to hold that the acquittal is not
justified. In those line of cases this Court has
also held that the appellate court must also
bearing in mind the fact that the trial court had
the benefit of seeing the witnesses in the witness
box and the presumption of innocence is not
weakened by the order of acquittal, and in such
cases if two reasonable conclusions can be
reached on the basis of the evidence on record,
the appellate court should not disturb the finding
of the trial court. (See Bhim Singh Rup Singh v.
State of Maharashtra and Dharamdeo Singh v.
State of Bihar.)”

53. The State has not been able to make out a
case of exception to the above settled principles. It
was for the State to show that the High Court has
completely fallen in error of law or that judgment in
relation to these accused was palpably erroneous,
perverse or untenable. None of these parameters are
satisfied in the appeal preferred by the State against
the acquittal of the three accused.”

22. In case of Kanhaiya Lal and others vs. State of Rajasthan
reported in (2013) 5 SCC 655, the Apex Court has observed
in paras:31, 32, 33, 34 and 37, as under:

“31. In Jadunath Singh v. State of U.P. a three-
Judge Bench, while dealing with an appeal against
acquittal, has held thus:

“22. This Court has consistently taken the
view that in an appeal against the High Court
has full power to review at large all the
evidence and to reach the conclusion that
upon that evidence the order of acquittal
should be reversed. This power of the

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appellate court in an appeal against acquittal
was formulated by the Judicial Committee of
the Privay Council in Sheo Swarup v. King
Emperor, and Nur Mohammed v. King
Emperor. These two decisions have been
consistently referred in the judgments of this
Court as laying down the true scope of the
power of an appellate court in hearing criminal
appeals (see Surajpal Singh v. State and
Sanwant Singh v. State of Rajasthan).”

32. In Sohrab v. State of M.P. this Court opined
that under the Code of Criminal Procedure, the High
Court has full power to review at large the evidence
upon which the order of acquittal is founded and to
reach the conclusion that on proper appreciation of
the evidence, the order of acquittal should be
reversed. No limitation should be placed upon that
power unless it is expressly stated in the Code. After
so stating, the two-Judge Bench expressed thus :

“8. … But in exercising the power conferred by
the Code and before reaching its conclusions
upon fact, the High Court, should and will
always give proper weight and consideration
to such matters as (1) the views of the trial
Judge as to the credibility of the witnesses; (2)
the presumption of innocence in favour of the
accused, a presumption certainly not
weakened by the fact that he has been
acquitted at his trial; (3) the right of the
accused to the benefit of any doubt; and (4)
the slowness of an appellate court in
disturbing a finding of fact arrived at by a
Judge who had the advantage of seeing the
witnesses.”

33. In State of M.P. v. Bachhudas, after referring
to Bhagwan Singh v. State of M.P. and other
pronouncements, it has been stated that :

(Bachhudas case, SCC p.198 para 12)

“12. ‘5. …. the principle to be followed by the
appellate court considering the appeal against
the judgment of acquittal is to interfere only

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when there are compelling and substantial
reasons for doing so. If the impugned
judgment is clearly unreasonable and relevant
and convincing materials have been
unjustifiably eliminated in the process, it is a
compelling reason for interference.’*”.

34. In State of Rajasthan v. Abdul Mannan this
Court has stated that:

“13. When an accused is acquitted of a criminal
charge, a right vests in him to be a free citizen
and this Court is very cautious in taking away
that right. The presumption of innocence of the
accused is further strengthened by the fact of
acquittal of the accused under our criminal
jurisprudence. The courts have held that if two
vies are possible on the evidence adduced in the
case, then the one favourable to the accused,
may be adopted by the court. However, this
principle must be applied keeping in view the
facts and circumstances of a case and the thumb
rule is that whether the prosecution has proved
its case beyond reasonable doubt. If the
prosecution has succeeded in discharging its
onus, and the error in appreciation of the
evidence is apparent on the face of the record,
then the court can interfere in the judgment of
acquittal to ensure that the ends of justice are
met. This is the linchpin around which the
administration of criminal justice revolves.”

37. Applying the principles laid down by this Court
in the aforesaid authorities, it is very difficult to hold
that there are “substantial and compelling reasons”,
“good and sufficient grounds”, “very strong
circumstances”, “distorted conclusions” or “glaring
mistakes”, and the prosecution has discharged the
onus and, therefore, we are of the considered opinion
that the view expressed by the High Court does not
suffer from any such infirmity. We are inclined to
think that the approach of the High Court cannot be
said to be totally implausible. It has taken note of the
involvement of number of persons and, after filtering
the grain from the chaff and on due consideration of

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the material on record, has extended the benefit of
doubt to the accused persons who have been
acquitted. Thus, we are not disposed to dislodge the
conclusions arrived at by the High Court in recording
the acquittal.”

23. In view of aforesaid position prevailing on record and in
view of the settled propositions of law, we are of the
considered opinion that this is not a fit case in which order of
acquittal is possible to be interfered with and there are no un-
impeachable circumstance prevailing on record which would
permit us to dislodge the findings of acquittal in the absence
of any perversity or manifest error in the judgment, which is
impugned in the present appeal. Thus, on the basis of overall
consideration of the evidence on record, we found the appeal
deserves to be dismissed being devoid of merits.

24. The judgment and order of acquittal, dated 28th January,
2005, passed by the learned 2nd Additional Sessions Judge,
Fast Track Court No.2, Patan, in Sessions Case No.88 of 2003
is hereby confirmed. Bail bonds, if any, shall stand
discharged. Record and proceedings shall be sent back
forthwith to the trial court.

(S.R.BRAHMBHATT, J.)

(A.J. SHASTRI, J.)
vipul

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