Gujarat High Court
Amratben Ramanbhai Solanki vs State Of Gujarat on 13 January, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/2181/2022 JUDGMENT DATED: 13/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 2181 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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Approved for Reporting Yes No
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AMRATBEN RAMANBHAI SOLANKI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
A B PATEL(7467) for the Appellant(s) No. 1
ADVOCATE NOTICE SERVED for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2,3,4,5
MR L. B. DABHI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 13/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. This appeal is preferred by the original complainant under
section 372 of the Code of Criminal Procedure, challenging
judgment and order dated 29.08.2022 passed by the
Principal District and Sessions Judge, Kheda at Nadiad in
Sessions Case No.59 of 2021.
2. By the impugned judgment and order the Principal District
Judge has recorded acquittal of the respondent- accused
from the offences under sections 436, 504, 506(2) and
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114 of the Indian Penal Code. The incident appears to
have been occurred on account of quarrel, which ensued
because of court case, which was pending upon the
dispute of right of way between the families of appellant
and respondent-accused. In connection with the incident,
an FIR being C.R. No.11204041200036 of 2020 came to
be registered by the complainant- appellant, wherein it is
alleged that the incident taken place at 19.30 hrs. on
24.01.2020, because of on going dispute regarding right
of way, where the respondent- accused came to the
residence of the appellant and started using abusive
language and threatened the family members of the
appellant. As a result of which, the appellant and the
family members escaped from the place and thereafter,
the respondent accused lite haystack for fodder stored at
terrace and set at fire.
3. On due investigation, charge-sheet came to be filed for
the offences under sections 436, 504, 506(2) and 114 of
the Indian Penal Code and by and upon compliance with
the provisions of Section 207 of the Code of Criminal
Procedure, the case was committed to the Sessions Court,
Kheda at Nadiad.
4. Learned advocate for the appellant submitted that though
there was sufficient evidence available with the Trial Court
in the form of depositions of eye-witnesses about arrival of
the respondent-accused at the residence of the appellant
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consisting verbal threats and thereafter, immediately
setting ablaze haystack bundles on the terrace. According
to the appellant, the deposition of eye-witness was
sufficient to establish the charge against the respondent,
erroneously the Sessions Court has recorded the acquittal.
5. It is submitted that the Trial Court has committed an error
in acquitting the respondents on the ground that during
the course of investigation samples of haystack of rice
were sent to the FSL, which did not show the presence of
any hydrocarbon and therefore, circumstantial evidence
did not corroborate with the depositions and the same
witnesses. It is submitted that when eye-witness has
given his count of setting the haystack on fire, the
Sessions Court was not required to go into the
corroborative evidence of presence of any hydrocarbon.
6. The Court has taken into consideration the submissions
made by the learned advocate for the appellant and has
also considered the order sheet, wherein on 22.09.2023,
this Court had issued notice upon the respondents, and
thereafter, consistently, learned advocate for the appellant
has remained present. Thus, recorded particularly in
orders dated 20.07.2023, 23.07.2024 and thereafter, by
order dated 13.08.2024, the Court had called for the
record and proceedings.
7. The Court has perused the record and proceedings. The
Court finds that during the course of trial, the trial Court
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has examined the 10 witnesses and 10 documents having
been exhibited as under:
List of prosecution witnesses examined by the Court:
Witness Exh. Name of Witness
No. No.
1 12 Amratben Ramanbhai Solanki
2 14 Naynakumari Mohansinhji Rajput
3 16 Dashrathbhai Kanubhai Bhoi
4 18 Vishnubhai Ramanbhai Patel
5 20 Salimmiya Kalumiya Malek
6 22 Dineshbhai Chhotalal Barot
7 23 Arjunbhai Gandabhai Parmar
8 25 Udabhai Kulabhai Jadav
9 29 Rameshchandra Aatmaram Vaghela
10 31 Rameshchandra Bhemsinh Dhabhi
List of evidence examined by the Court:
Sr. Exh. Particulars of Evidence
No. No.
1 13 Complaint
2 15 Report of FSL Investigation.
3 17 Panchnama of the place of incident.
4 21 Inquest panchnama of accused.
5 24 Panchnama of place, where haystack for
fodder were brunt.
6 30 Copy of station diary.
7 32 Outward entry of muddamal
8 33 Receipt of FSL regarding receipt of
muddamal.
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9 35 Letter of FSL.
10 36 Report of FSL.
8. Vide Exh.6, charge came to be framed against the four
accused-respondents alleging that on 24.10.2020 at 19:30
hrs., at village Raska, at the residence of the appellant-
complainant, there was a dispute of right of way of the
accused persons from the residence side of the appellant
and in this connection a court case was pending and
keeping grudge with regards to the dispute, the accused
persons arrived at the residence of the appellant armed
with sticks and hurling verbal abuses. They went on to the
terrace of the house and set a fire the haystack, which
was fodder for the cattle, thereby causing damage to the
appellant. The cause of fire was fluid substance and
thereby charge for the offence under sections 436, 504,
506(2) and 114 of the Indian Penal Code came to be
framed.
9. Vide Exh.7 further statement under Section 313 of the
Code of Criminal Procedure was recorded of all the
accuses persons, where they have denied each and every
allegations made against them and have claimed that they
were innocent and on account of some enmity, a false
case is foisted upon them.
10. PW-1 is the complainant, who is examined vide Exh.12,
wherein she has exhibited the FIR at Exh.30 and has
deposed in her chief that the incident of fire setting
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around three years back and the bundle of haystack were
set on fire by the accused persons. It is deposed that at
the time while they were having their meals, the accused
persons set the fire and therefore, they ran away from
their house. According to this witness, the fire was being
set by using a fluid substance which this witness saw was
being used by the accused persons. She has deposed that
because of fear, she had ran away from her house and it
in this connection, she had registered the FIR. In the
cross-examination, she has confirmed that when the
altercation took place, she was having her meals and at
the relevant time, Somabhai was residing in their lane and
there was a Court case which was continuing with regard
to the right of way. At the relevant time, on account of
altercation, several people had got together and as the
quarrel escalated, this witness alongwith Vinubhai left
their house and went away.
11. PW-2-Naynakumari Mohansinjji Rajput, examined at
Exh.14. She was summoned on telephone for drawing the
panchnama of scene of offence. She has giver in her
deposition the description about the area and construction
where the incident had taken place. She has also deposed
that from the scene of offense, half burned haystack were
taken as samples to be sent to FSL.
12. PW-3-Dashrathbhai Kanubhai Bhoi was examined at
Exh.16. He is a witness for panchnama for seizure of
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various articles from the place of offense however, this
witness was declared hostile and the panchnama at
Exh.16 was given exhibit number for the purpose of
signatures.
13. Similarly, PW-4 -Vishnubhai Ramanbhai Patel, the co-
panch of PW-3 was also declared hostile.
14. PW-5-Salimmiya Kalumiya Malek is the panch witness of
the panchnama of seizure of sticks from the respondents-
accused however, this witness is also declared hostile and
therefore, qua him, the panchnama for seizure of weapon
was given exhibit No.20 only for the purpose of signature
of this witness. Similarly, co-panch-Dineshbhai Chhotalal
Barot was examined vide Exh.22, who was also declared
hostile.
15. As the panch witnesses were of scene of offense and
seizure of articles form the scene of offense as well as
seizure of alleged weapons were declared hostile, the
Court has taken into consideration the evidence of the
Investigating Officer, who is examined as PW-10-
Rameshchandra Bhemsinh Dabhi at Exh.31. In his
deposition also, the witness in the evidence in chief has
narrated the chronology of action taken by him, but the
Court finds that in the deposition of this witness, the
contents of the panchnama being Exh.20 and 16 have not
been narrated by this witness and therefore, in the opinion
of the Court, the contents of panchnama not have been
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proved, cannot be accepted as evidence on record.
16. These are the evidences, which would corroborate the
version of the eye-witness. However, these corroborative
pieces of evidences are not proved by the prosecution and
hence, the same cannot be considered as supporting the
case of the eye-witnesses. The Court has taken into
consideration the version of the eye-witnesses also. It is
coming out that on account of existing dispute of right of
way, PW-1 was the vitally interested witness. Not only
that even as per the evidence of this witness relied upon
by the prosecution, several other persons has gathered
when the altercation took place, however, the prosecution
has not examined the single witness which can be treated
as an independent witness for substantive evidence.
17. The other witness for corroborating the version of the
witnesses, is the FSL report relied upon by the prosecution
which is exhibited vide Exh.36 which contains the report of
muddamal articles seized from the scene of offense,
particularly, parcel is given mark-C which contained half
burned portion of hay and ashes. Similarly, mark-D was
the sample of half burned ashes from the bundle of
haystack and the result of the FSL is that no traces of
Petroleum Hydrocarbon was found in the sample at mark-
C and mark-D. Therefore the version given by the
prosecution witness No.1 about the setting of a fire by the
respondents-accused by use of fluid substance or chemical
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is also not corroborated.
18. The Court having found PW-1-original complainant whose
version does not clearly assign any role to any of the
respondents-accused and in absence of the prosecution
producing any independent witnesses though it is a case
of the prosecution itself that other witnesses were
available and lastly non-corroborating of the scientific
evidence would make the evidence of this eye-witness
vulnerable and therefore, the Court does not deem it fit to
rely upon the evidence of such witness as sufficient for
convicting the accused persons.
19. The Court may also draw strength from the decision of the
Apex Court in case of Rajesh Prasad Vs. State of Bihar
& Anr. reported in (2022) 3 SCC 471, wherein the Apex
Court has examined the case law with regard to the power
of the High Court to overturned the decision of the
Sessions Court where an another view is possible.
Examining the case including that of Chandrappa & Ors.
vs. State of Karnataka reported in (2007) 4 SCC 415,
the Apex Court has culled out the general principles
regarding the powers of the Appellate Court while dealing
with the appeal against the order of acquittal. The Apex
Court has held that the appellate court has full power to
review, re-appreciate and reconsider the evidence upon
which the order of acquittal is founded. However, the
appellate court has to keep in mind that in case of an
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acquittal, there is a double presumption in favour of the
accused. Firstly, the presumption of innocence is available
to him under the fundamental principle of criminal
jurisprudence, and thereafter, upon securing of acquittal,
the presumption is further reinforced, reaffirmed and
strengthened, and therefore, whenever there are two
reasonable conclusions are possible on the basis of the
evidence on record, ordinarily, the Apex Court would not
disturb the findings of acquittal recorded by the Trial
court.
19.(a) Considering the reasons assigned by the Sessions Court
in the impugned judgment so also the reasoning
assigned herein, there is no reason to interfere with the
decision of the Sessions Court.
20. In the result, the appeal fails and is dismissed. The
judgment and order of acquittal dated 29.08.2022 passed
in Sessions Case No.59 of 2021 by the Principal District
and Sessions Judge, Kheda at Nadiad stands confirmed.
Bail and bail-bonds of the accused, if any, stand
discharged. Records and proceedings be sent back to the
concerned trial Court.
(A.Y. KOGJE, J)
(SAMIR J. DAVE,J)
MEHUL B. TUVAR/ SIDDHARTH
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