Gujarat High Court
State Of Gujarat vs Nitesh @ Narendra Batookbhai Vaishnav … on 24 July, 2026
NEUTRAL CITATION
R/CR.A/1113/1998 JUDGMENT DATED: 24/07/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1113 of 1998
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
and
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
NITESH @ NARENDRA BATOOKBHAI VAISHNAV (VALAND)
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Appearance:
MR.MEET THAKKAR, APP for the Appellant(s) No. 1
ADVOCATE NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
and
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 24/07/2026
JUDGMENT
(PER : HONOURABLE MR.JUSTICE MOOL CHAND TYAGI)
1. The present Appeal is filed by the Appellant – State of
Gujarat under the provisions of Section 378 of the Code of
Criminal Procedure, 1973 ( hereinafter be referred to as Cr.P.C.
) challenging the Judgment dated 13.11.1998 passed by the
learned Sessions Judge, Rajkot ( hereinafter be referred to as
the Ld. Trial Court / Ld.SJ) in Sessions Case No.152 of 1998,
whereby the Respondent herein was ordered to be acquitted of
the charges for the offences punishable under Sections 302,
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449 r/w Section 34 of the Indian Penal Code,1860 (hereinafter
be referred to as “IPC“) .
2. The facts and circumstances giving rise to the filing of the
present appeal are as follows: Accused Nitesh @ Narendra
Batukbhai Vaishnav was allegedly having an illicit relationship
with Kiranben, the wife of the deceased – Jitesh Babubhai
Vanand. It is alleged that on 25.06.1998, between 8:00 p.m.
and 8:30 p.m., the accused – Nitesh, with a view to removing
an obstacle from his path and with the assistance of an
unidentified person, poured kerosene on the body of the
deceased-Jitesh Babubhai Vanand and set him ablaze by
igniting a matchstick in his house, thereby causing his death.
3. Accordingly, FIR being I.C.R.No. 220 of 1998 was lodged
at Malaviyanagar Police Station, District-Rajkot and
investigation was carried out and ultimately, charge-sheet
came to be filed against the accused under Sections 302, 449
r/w Section 34 of the IPC before the Judicial Magistrate. As the
case was exclusively triable by the Court of Sessions, learned
Magistrate under Section 209 of the Cr.P.C. committed the said
case to the Court of Sessions Court, Rajkot, which came to be
numbered as Sessions Case No.152/1998.
4. On 09.09.1998, the learned Trial Court framed the
charges at Exh. 1 under Sections 302, 449 r/w Section 34 of
the IPC. Since, the accused did not plead guilty and claimed to
be tried, he was tried for the said offences.
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5. In order to bring the home the guilty of the accused, the
prosecution has led following oral and documentary
evidences:-
ORAL EVIDENCE
Sr.No P.W.N WITNESS Exh.
. O.
1. 1. Deposition of Dr. Anilkumar Gordhandas Patel 8
2. 2. Deposition of witness - Jagdishchandra Nagindas 14
Dave
3. 3. Deposition of witness - Premjibhai Tapubhai 17
Sipariya, Deputy Mamlatdar and Executive
Magistrate
4. 4. Deposition of witness - Dilipbhai Dhirajlal Rajpopat 21
- Panch witness of Scene of Office
5. 5. Deposition of witness - Umaben Rasiklal Joshi 23
6. 6. Deposition of witness Dr.Jaswantrai Shantilal 24
Vishani
7. 7. Deposition of witness-Dr.Jayantilal Gordhanbhai 26
khant
8. 8. Deposition of witness-S.S.Goswami - P.I. 28
9. 9. Deposition of witness-Kiranben Jitesh bhai - widow 34
of deceased-Jiteshbhai
10. 10. Deposition of witness- Navinbhai Balashankar 35
Bhatt, Duty Head Constable of Hospital Police
Choki
11. 11. Deposition of witness-Anwarbhai Umrabhai Sumra, 37
Head Constable – Malaviyanagar Police Station
12. 12. Deposition of witness-Bharatbhai Jentilal 42
13. 13. Deposition of witness-Karekhan Adamkhan Kureshi 45
– P.I. Malaviyanagar Police Station
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DOCUMENTARY EVIDENCE
Sr.No. EXH Description
1. 9 Post-mortem Note
2. 10 Cause of Death
3. 11 Yadi written by Medical Officer to P.I.
4. 12 Forwarding Letter to P.I.
5. 13. Summon Application of Dr.Khant – Government Hospital
6. 15 & Yadi and Map of Scene of Office
16
7. 18 Yadi of Dying Declaration
8. 19 Dying Declaration of Jitesh Babubhai Vanand
9. 20 Officer order recording Dying Declaration
10. 22 Panchnama of Scene of Offense
11. 25 M.L.C. Case Papers
12. 29 Letter of handing over of investigation
13. 30 Complaint
14. 32 Inquest Panchnama
15. 33 Arrest Panchnama of accused
16. 36 Hospital Choki Vardhi Register Extract
17. 38 to Station Diary A.N.20/22/3/98 Extract
40
18. 41 Entry regarding intimation of death
19. 44 Yadi for P.M.
20. 45 Letter of adding Section 302
21. 46 Letter of receiving Logbook Extract
22. 47 Telephone Note Register Extract
23. 487 Letter to Executive Magistrate regarding receiving
of copy of D.D.
24. 53 & F.S.L. Report
54
6. After recording all the evidence, statement of the
accused under Section 313 of Cr.P.C. were recorded and all the
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incriminatory evidence were put to him. He denied all the
incriminatory evidences and took the plea that he has been
falsely implicated in the crime. Thereafter, the case was fixed
for the evidence of accused, but he had not led any oral and/
or documentary evidence. Thereafter, hearing the arguments
on behalf of the prosecution and the defence and having
considered the arguments and evaluating the oral as well as
documentary evidences, the Ld. SJ acquitted the accused of all
the charges levelled against him by the Judgment dated
13.11.1998.
7. Being aggrieved by and dissatisfied with the judgment
dated 13.11.1998 passed by the learned Sessions Judge,
Rajkot, the appellant-State has preferred the present Criminal
Appeal.
8. We have heard learned Additional Public Prosecutor for
the appellant-State.
9. Mr. Meet Thakkar, learned Additional Public Prosecutor
for the appellant-State, vehemently submitted that the learned
Sessions Judge has not properly appreciated the evidence on
record. He contended that the wife of the deceased – Kiranben,
was having an illicit relationship with the accused person –
Nitesh @ Narendra Batukbhai Vaishnav, as such, the accused
person decided to eliminate her husband from his way. Thus,
he came with another person and poured kerosene oil on the
deceased and set him on fire. The deceased sustained severe
burn injuries and he succumbed to the said injuries during
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treatment. He further submitted that the case of the
prosecution is duly proved by PW3 – Premjibhai Tapubhai
Sipariya, Deputy Mamlatdar & Executive Magistrate, who
recorded the dying declaration of the deceased. PW3 proved
the dying declaration of the deceased at Exh.19. He further
submitted that the compliant of the offence was made by the
deceased himself. The said complaint was recorded by PW8 –
S.S. Goswami, Sub Inspector, Malviyanagar Police Station and
the same has been proved on record at Exh.30. Learned APP
further argued that both PW3 & PW8 has proved on record that
the accused person, along with an unknown co-accused, came
to the hutment of the deceased and poured kerosene on the
deceased and set him on fire. He argued that there are ample
and clinching evidence on record which proved on record that
the accused persons had committed the offense, however, the
learned Sessions Judge had not believed the depositions of
PW3 & PW8 and the documentary evidence in the nature such
as Exh.19 – dying declaration and the Exh.-30 – complaint
made by the deceased himself. He argued that dying
declaration can be the sole basis of conviction. He submitted
that the dying declaration has been duly proved on record,
therefore, the order of acquittal recorded by the learned
Sessions Judge is not sustainable, hence contended that the
impugned judgment is liable to be set aside and accused
persons shall be held guilty and be convicted accordingly.
10. The Rule has been duly served upon the
accused/respondents and pursuant thereto, the
accused/respondents has engaged one advocate, but despite
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service of advocate notice and affording ample opportunities,
the learned advocate had chosen not to appear before this
Court to assist this Court at the time of hearing.
11. We have heard the learned APP appearing for the
appellant – State and perused the material available on record.
Before proceeding further, it would be apposite to scrutinize
the oral as well as documentary evidence tendered by the
material prosecution witnesses before the learned Sessions
Judge, so as to decided as to whether the order of acquittal is
sustainable or liable to be set aside.
12. In order to bring home the guilt of the accused, the
prosecution has examined as many as 13 witnesses and has
also led 28 documentary evidence on record.
13. PW1 is Dr. Anilkumar Gordhandas Patel, the Medical
Officer at General Hospital Rajkot. He conducted the post
mortem of the deceased. He was examined at Exh.8. PW1 also
proved the PM Report at Exh.9. He deposed that the deceased
sustained 2nd & 3rd degree burn injuries had succumbed to
death due to these burn injuries. He deposed that the
deceased had sustained burn injuries to the extent of 90% and
only the palm of his hands and the soles of his feet were left
unburned. In his cross-examination, PW1 admitted that if a
person sustained such type of burn injuries as sustained by the
deceased, his mental state may be affected and he may be
susceptible to hallucination. He further admitted in the cross-
examination that the burn injuries sustained by the deceased
may be caused to a person if he attempts to commit suicide.
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He was also shown the mudammal articles, i.e, two cans of
kerosene. He deposed that if an attempt was made to pour
kerosene on someone, as a result of an attempt to resist it, the
kerosene would also fall on the body/clothes of the person who
poured the kerosene. Further, the kerosene will also fall on
various parts of the place of incident, including walls and odor
of kerosone will be everywhere. Thus, the possibility of
sustaining such type of injury, may not be possible.
14. PW2 is Mr. Jagdishchandra Nagindas Dave, Circle
Inspector, Mamlatdar Office. He was examined at Exh.14. He
deposed that he prepared the site map of the place of incident.
He also proved the map of place of incident at Exh.16. He
deposed that the hutment where the incident took place, was
situated in the midst of other hutments. In his cross-
examination, he admitted that the surrounding areas were
thickly populated and many people are living in close vicinity.
15. PW3 is Premjibhai Tapubhai Sipariya, Deputy Mamlatdar
and Executive Magistrate. He was examined at Exh.17. He
deposed that he received the Yadi (Exh.18) of Dying
Declaration from the Police Station at 9:50 p.m. of 25.06.1998
for recording the dying declaration. He deposed that upon
receiving the said yadi, he reached the Government Hospital,
Rajkot and he enquired about the injured from the Staff Nurse,
and he was informed that the injured is admitted due to burn
injuries in cabin No.1. He recorded the Dying Declaration of the
deceased from 10:20 pm to 10:30 pm. When he enquired from
the injured, initially he did not respond but thereafter, PW3
called the medical officer on duty in the cabin. Thereafter, Mr.
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Visani, Medical Officer, asked the injured his name and the
injured replied that his name was Hitesh Babulal Vanand. He
enquired from the injured regarding the manner of occurrence
of the incident. He further deposed that the during the
recording of the dying declaration, Dr. Visani was available
there. He further deposed that when he was recording the
dying declaration of the deceased, he could sense the distinct
odor of kerosene from the victim’s body. His eyes were closed,
but he was able to speak. He further deposed that he had to
repeat the questions three to four times and the victim was
responding slowly in a halting, piecemeal manner. He further
deposed that after recording the dying declaration, he took the
thump impression of the victim. In his cross-examination, he
admitted that in the dying declaration, he has not recorded
anything regarding about the mental state of the injured. He
also admitted that he has not recorded Dr. Visani’s opinion
about the mental state of the injured. He also admitted that
victim was suffering a lot of pain, and his health condition was
very serious, his entire body was burnt and he could not open
his eyes. He admitted that each and every question had to be
repeated three to four times and the victim was responding
very slowly in a broken voice and in a piecemeal manner. He
also admitted that in the dying declaration, he initially
mentioned the name of the injured as “Nitesh” and thereafter,
he corrected it to “Jitesh”. In his cross-examination, he denied
the suggestion that at the time of recording the dying
declaration, the deceased was not in the fit state of mind, but
he admitted that at the time of recording the dying
declaration, endorsement with regard to the mental state of
the deceased was required to be mentioned.
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16. PW4 is Mr. Dilipbhai Dhirajlal Rajpopat, who is the panch
witness of the scene of offence. He was examined at Exh.21.
He deposed that at the place of the incident, there were nine
hutments adjacent to each other. The incident took placed in
the 5th hutment, which is situated in the middle. He also
deposed that at the place of scene of offence, one primus, one
matchbox, two half burnt matchsticks, two cans of kerosene,
one empty in opened in condition, and another filled with three
and a half litre kerosene were found. He also deposed that one
half burned mattress was found lying 10 feet away from the
door of said hutment. He also deposed that he could sense the
odor of kerosene in the hutment. He also deposed that the
area was thickly populated and at the place of incident, apart
from the nine hutments, several other residential houses were
also there. He also deposed that the adjacent area and road
next to the hutments were generally busy with constant traffic
and continuous pedestrian movements throughout the day
until around 8 to 9 in the evening. He also deposed that many
people used to gather and sit in the nearby Otla (a raised
platform outside the house).
17. PW5 is Ms. Umaben Rasiklal Joshi. She was examined at
Exh.21. She deposed that on 25.06.1998 at about 08:00 pm,
while she was going to Sheri No.3, Naval Nagar, she saw that a
mob has gathered near Jagubhai Bharwad’s house. She went
there and saw one person lying on the road in a burnt
condition. She enquired as to what happened to him. He
answered “મારા કિસ્મત”, (which roughly translates to “my fate or
my destiny”). The said person asked for water twice. At that
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time, a vehicle came and he was immediately taken to
hospital. After sometime, the wife of the said person came
there and she said that the name of that injured person is
Jitesh Babubhai Vanand. In cross-examination, she admitted
that she was going to Sheri No.3 to pay Rs.200/- for a Sari
which she has bought. In the meantime, she felt dizzy due to
low blood pressure and she sat down near Sheri No.3 and
asked for some drinking water from one lady. While she was
drinking water, she saw that a house opposite to her was on
fire. She thought that the primus stove might have burst,
hence, she started shouting. In the meantime, one person
came outside the hutment in burnt condition. A mob gathered
there and PW5 asked what had happened to him and at that
time, he did not reply that somebody has poured kerosene on
him and set him on fire.
18. PW6 is Dr. Jaswantrai Shantilal Visani, the Medical Officer
of General Hospital, Rajkot. He was examined at Exh.24. He
deposed that at 8:30, he came to know that one person in a
burnt condition, had been admitted to the hospital. The said
person was treated by Dr. Khant, who was the duty Doctor
when that person was brought in. He started the treatment. On
being asked, the victim told that his name was Jitesh Babubhai
Vanand, resident of Sheri No.3, Naval Nagar. He also told that
he is serving in one Engineering Company. PW6 enquired from
the injured as to how he has received the burn injuries, to
which the victim replied that two unknown persons came and
poured kerosene on him and set him on fire and also taken
away Rs.500/- from him. He also deposed that the entire body
got burned injuries. He also deposed that Executive
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Magistrate- Mr. Premjibhai Tapubhai Sipariya came to record
the dying declaration, which started by 10:20 and completed
by 10:30. He further deposed that he ensured that the victim
was in a fit state of mind. He also recorded the blood pressure
of the victim. He further deposed that the victim was
answering to the questions after taking considerable time and
in a halting, peacemeal manner. He also deposed that when
the victim was conscious, he enquired from him as to how he
got these injures, to which he replied that two unknown
persons poured kerosene on him and set him on fire. He also
admitted that when the dying declaration was recorded by
Executive Magistrate- Mr. Premjibhai Tapubhai Sipariya, the
victim responded in a halting, peacemeal manner and some
times responded only after the question was repeated two to
three times. In his cross-examination, he admitted that he has
not recorded the victim’s blood pressure at that time in the
medical papers. He also admitted that he has not recorded the
mental state of the deceased at the time of recording the
dying declaration. He also admitted that when he examined
the victim at 8:30 pm, his general health was very poor and it
was slowly deteriorating. He also admitted that he made his
endorsement regarding the mental state of the victim after
recording of the dying declaration.
19. PW7 is Dr. Jayanthilal Gordhanbhai Khant, who is the
doctor who admitted the victim to the hospital. He was
examined at Exh.26. He deposed that when the victim came to
the hospital, he was conscious and he was brought in by one
Jagdishbhai Jagjibhai, who is the resident of Sheri No.2, Naval
Nagar. PW7 prepared the M.L.C. case papers. He proved the
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M.L.C. case papers at Exh.25. He deposed that the victim told
that two unknown persons poured kerosene on him and set
him on fire. He also deposed that his working hours were up
to 8:30 pm, as such, Dr. Visani took over the charge and he
handed over the papers to Dr. Visani. In his cross-examination,
he admitted that when he enquired from the victim as to how
he has sustained burn injuries, the victim responded that two
unknown persons poured kerosene on him and set him on fire.
Apart from this the victim has not told anything else.
20. The prosecution has also examined S.S. Goswami, Sub
Inspector of Police, Malviyanagar Police Station, Rajkot as PW8
at Exhibit 28. He deposed that he received a Yadi at 8:30 pm
from the DSP. On receiving the Yadi, at about 8:45 p.m. he
reached the hospital and he met the victim who has sustained
the burn injuries and he recorded the complaint. The said
complaint was read over to the victim and he also obtained the
thumb impression of the victim. He also proved the said
complaint at Exh.30. He deposed that when he recorded the
complaint, the mental state of the victim was good. He could
understand the questions and was able to respond to them.
After recording the complaint, he wrote a letter to the
Executive Magistrate for recording the dying declaration of the
victim. In his cross-examination, he admitted that he has not
taken the endorsement of the Medical Officer regarding the
mental state of the victim. He admitted that he is aware that
before recording a complaint, the endorsement of the Medical
Officer is necessary but he has not obtained any such
endorsement of the Medical Officer regarding the mental state
of the victim. He also admitted that he has not mentioned in
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the complaint that the victim received the burn injuries on
entire body and his general health was very poor and his
health was deteriorating. He admitted that in the complaint,
initially he has mentioned the name of the accused wrongly as
“Jitesh” but thereafter it was corrected as “Nitesh”. He also
admitted that he has not initialled the said correction. He also
admitted that at that time, the health condition of the victim
was very poor, he could hardly speak and was speaking in a
broken, piecemeal manner.
21. PW9 is Kiranben Jiteshbhai, who is the widow of the
deceased. She was examined at Exh.34. She deposed that at
the time of the incident, she was not at home as she went to
purchase vegetables. When she came back she saw her
husband lying in a burnt condition. She deposed that she is not
aware as to how her husband sustained the burnt injuries. She
denied that she was having an illicit relationship with the
accused Nitesh.
22. PW10 is Navinbhai Balashankar Bhatt, the Head
Constable of Police Choki. He was examined at Exh.35. He
deposed that at the time of the incident, he was posted as
Head Constable in Police Choki situated at Government
Hospital. He received information from the Medical Officer that
a person has been brought in with burn injuries. Therefore, he
went to the Emergency Ward of the Hospital where the victim
was admitted. He deposed that the victim’s whole body was
burned. On being asked, the victim responded that his name
was Jitesh Babubhai Vanand. He enquired as to how he has
sustained the burnt injuries, to which he replied that he has
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received burn injuries but did not explain as to how he
received them. He made an entry to that effect in the register
maintained at Police Station and thereafter he made a
telephonic call to Anwarbhai Umrabhai Sumra, Head Constable
of Malaviyanagar Police Station. He proved the said entry at
Exh.36. In his cross-examination, he admitted that the
deceased had expired on 0:45 am in the night, and he also
made an entry in the register maintained at Police Choki to
that effect. He further admitted in his cross-examination that
on receiving the information regarding the commission of a
homicidal offence, the FIR has to be recorded immediately. He
also admitted that the victim has not told him that two
unknown persons have poured kerosene on him and set him on
fire.
23. PW-11 is Anwarbhai Umrabhai Sumra, Head Constable of
Malaviyanagar Police Station. He was examined at Exh. 37. He
deposed that on receiving the vardhi from Navinbhai
Balashankar Bhatt, the Head Constable of Police Choki, he
immediately made an entry in the station diary and thereafter
handed over the investigation to SS Goswami, Sub Inspector.
He also proved the entry made in the station diary at Exh.38.
In his cross-examination, he admitted that he has not received
any instructions from Sub Inspector SS Goswami, either
through telephone or through wireless from the hospital to
arrest the accused person immediately.
24. PW-12 is Bharatbhai Jentilal. He was examined at Exh.42.
He deposed that when he along with Jagdishbhai was reading
newspaper near the hutment of Jagdishbhai, they saw a mob
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gathering near to them. Therefore, they went there and found
one person lying on the road in a burned condition. In the
meantime, a vehicle came, therefore he, Jagdishbhai, and
Manojbhai took the victim to the hospital. The victim told him
his name as Jitesh Babubhai Vanand and said that he was
residing in the hutment of Jagabhai Bharwad. In his cross-
examination, he stated that the victim told them to take him to
the hospital immediately. He also told his name as Jitesh
Babubhai Vanand and he was residing in the hutment of
Jagabhai Bharwad. Apart from this he has not stated anything
else.
25. PW-13 is Karekhan Adamkhan Kureshi, who is the Police
inspector of Malaviya Nagar Police Station. He was examined
at Exh.45. He deposed that upon receiving the investigation
from Anwarbhai Umrabhai Sumra, Head Constable of
Malaviyanagar Police Station, he collected the papers and after
studying the papers, he conducted the investigation. He
recorded the statement of witnesses acquainted with the facts
of the case, carried out steps to prepare the panchnama, took
necessary steps to conduct the postmortem of the deceased,
seized the Mudammal articles by drawing panchnama, and
also sent the mudammal articles to FSL for getting serological
report. He collected all the reports, evidence and filed the
charge-sheet. In his cross-examination, he admitted that
during the course of investigation, he received one complaint
from the father of the accused – Nitesh, stating therein that at
that time of the incident the accused person was somewhere
else and not at the time place of incident. He conducted the
investigation and recorded the statements of the witnesses in
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the said application and in his investigation, it came on record
that the statements recorded by him corroborated the version
of the father of the accused. He also admitted that the said
application was marked to him by the Police Commissioner of
Rajkot. He also admitted that he has not submitted the paper
of investigation conducted in relation to the complaint lodged
by the father of the accused with the charge-sheet of the
present case. He also admitted in his cross-examination that
during his investigation, no independent evidence came on
record which supports the dying declaration of the deceased.
He also admitted that the place where the incident took place
is very thickly populated. He also admitted that during his
investigation, the name of the unknown accused person has
not come on record. He also admitted that he could not collect
the evidence regarding the unknown accused person. He also
admitted that the mudammal cycle on which the accused
person came to the house of the victim, could not be
recovered. He also admitted that he has not collected the
evidence regarding the fingerprints on the can in which the
kerosene was kept. He also admitted that he has not seized
the clothes of the accused. He also admitted that he has not
verified as to whether the second name of the accused was
Narendra. He also admitted that no marks of altercation were
found at the scene of the incident.
FINDINGS
26. From perusal of the ocular as well as documentary
evidence available on record, it emerges that the case of the
prosecution rests primarily upon the dying declaration of the
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deceased recorded by PW3 and the complaint made by the
deceased himself to PW8. Before appreciating the ocular
evidence, it would be apposite to narrate the law regarding the
appreciation of ocular evidence. In the case of Balu Sudam
Khalde v. State of Maharashtra reported in 2023 SCC
OnLine SC 355, wherein the principles of appreciating the
ocular evidence have been summarized. The same is
reproduced hereinunder for ready reference:-
APPRECIATION OF ORAL EVIDENCE
25. The appreciation of ocular evidence is a hard task.
There is no fixed or straight-jacket formula for
appreciation of the ocular evidence. The judicially
evolved principles for appreciation of ocular evidence in
a criminal case can be enumerated as under:
“I. While appreciating the evidence of a witness,
the approach must be whether the evidence of the
witness read as a whole appears to have a ring of
truth. Once that impression is formed, it is
undoubtedly necessary for the Court to scrutinize
the evidence more particularly keeping in view the
deficiencies, drawbacks and infirmities pointed out
in the evidence as a whole and evaluate them to
find out whether it is against the general tenor of
the evidence given by the witness and whether
the earlier evaluation of
the evidence is shaken as to render it unworthy of
belief.
II. If the Court before whom the witness gives
evidence had the opportunity to form the opinion
about the general tenor of evidence given by the
witness, the appellate court which had not this
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appreciation of evidence by the trial court and
unless there are reasons weighty and formidable it
would not be proper to reject the evidence on the
ground of minor variations or infirmities in the
matter of trivial details.
III. When eye-witness is examined at length it is
quite possible for him to make some
discrepancies. But courts should bear in mind that
it is only when discrepancies in the evidence of a
witness are so incompatible with the credibility of
his version that the court is justified in jettisoning
his evidence.
IV. Minor discrepancies on trivial matters not
touching the core of the case, hyper technical
approach by taking sentences torn out of context
here or there from the evidence, attaching
importance to some technical error committed by
the investigating officer not going to the root of
the matter would not ordinarily permit rejection of
the evidence as a whole.
V. Too serious a view to be adopted on mere
variations falling in the narration of an incident
(either as between the evidence of two witnesses
or as between two statements of the same
witness) is an unrealistic approach for judicial
scrutiny.
VI. By and large a witness cannot be expected to
possess a photographic memory and to recall the
details of an incident. It is not as if a video tape is
replayed on the mental screen.
VII. Ordinarily it so happens that a witness is
overtaken by events. The witness could not have
anticipated the occurrence which so often has an
element of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb the
details.
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VIII. The powers of observation differ from person
to person. What one may notice, another may not.
An object or movement might emboss its image
on one person’s mind whereas it might go
unnoticed on the part of another.
IX. By and large people cannot accurately recall a
conversation and
reproduce the very words used by them or heard
by them. They can only recall the main purport of
the conversation. It is unrealistic to expect a
witness to be a human tape recorder.
X. In regard to exact time of an incident, or the
time duration of an
occurrence, usually, people make their estimates
by guess work on the spur of the moment at the
time of interrogation. And one cannot expect
people to make very precise or reliable estimates
in such matters. Again, it depends on the time-
sense of individuals which varies from person to
person.
XI. Ordinarily a witness cannot be expected to
recall accurately the
sequence of events which take place in rapid
succession or in a short time span. A witness is
liable to get confused, or mixed up when
interrogated later on.
XII. A witness, though wholly truthful, is liable to
be overawed by the court atmosphere and the
piercing cross examination by counsel and out of
nervousness mix up facts, get confused regarding
sequence of events, or fill up details from
imagination on the spur of the moment. The sub-
conscious mind of the witness sometimes so
operates on account of the fear of looking foolish
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witnessed by him.
XIII. A former statement though seemingly
inconsistent with the evidence need not
necessarily be sufficient to amount to
contradiction. Unless the former statement has
the potency to discredit the later statement, even
if the later statement is at variance with the
former to some extent it would not be helpful to
contradict that witness.”
[See Bharwada Bhoginbhai Hirjibhai v. State
of Gujarat 1983 Cri LJ 1096 : (AIR 1983 SC 753)
Leela Ram v. State of Haryana AIR 1995 SC
3717 and Tahsildar Singh v. State of UP (AIR 1959
SC 1012)]”
27. Now, in light of the aforesaid principles, the ocular
evidence deserves to be scrutinized. P.W.3 – Premjibhai
Tapubhai Sipariya, Deputy Mamlatdar and Executive
Magistrate recorded the dying declaration of the deceased. A
careful reading of his entire deposition reveals that he has
merely deposed before the Court regarding the procedure and
manner in which the dying declaration was recorded. He has
not, however, specifically proved the contents of the dying
declaration on record. Though the dying declaration came to
be exhibited during his deposition, its contents disclose that
the present accused along with the co-accused, arrived on a
bicycle, poured kerosene upon the victim, and thereafter set
him on fire.
28. P.W.8, S.S. Goswami, Police Inspector, recorded the
statement of the victim, wherein the victim narrated the same
version of the incident as reflected in the dying declaration.
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The said statement of the victim, which has been proved at
Exh.30 and formed the basis for registration of the F.I.R., can
also be treated as a dying declaration in view of the decision of
the Hon’ble Apex Court rendered in the case of Niraj Kumar
@ Neeraj Yadav v. State of U.P. & Ors., reported in 2025
LiveLaw (SC) 1171. It is a well-settled proposition of law that
a conviction can be founded solely on a truthful and reliable
dying declaration. However, before placing reliance upon such
evidence, the Court is required to satisfy itself that the dying
declaration inspires confidence and has been proved beyond
all reasonable doubt. Therefore, the question that falls for
consideration is whether the dying declaration recorded by
P.W.3 and the statement of the victim recorded by P.W.8,
which is also in the nature of a dying declaration, have been
proved to be genuine, voluntary and trustworthy, free from any
suspicion or doubt.
29. In order to appreciate the evidentiary value of the dying
declaration, the circumstances under which it came to be
recorded are required to be closely examined. As per the dying
declaration, two persons arrived on a bicycle and the present
respondent-accused along with the co-accused poured
kerosene upon the victim and set him on fire. The incident is
alleged to have taken place inside the hutment of the victim.
P.W.2 – Jagdishchandra Nagindas Dave, prepared the site map
of the place of occurrence. The site map reveals that there
were nine hutments at the place of incident and that the victim
was residing in Hutment No.5, situated amidst the said cluster
of hutments. In his cross-examination, P.W.2 admitted that the
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area where the incident occurred was thickly populated and
that the road adjoining the hutments was a busy thoroughfare.
Despite the incident having occurred in such a densely
populated locality, no witness has deposed to having seen the
accused persons either arriving at the place of occurrence or
fleeing therefrom after the incident. P.W.5 – Umaben Rasiklal
Joshi, who was present just opposite the place of occurrence,
did not witness any person running away from the spot.
Likewise, P.W.12, Bharatbhai Jentilal, who was reading a
newspaper near the victim’s hutment at the relevant time, also
did not see anyone leaving the place after the incident. In such
circumstances, it becomes difficult to unreservedly accept the
prosecution case that two persons had arrived at the spot on a
bicycle, committed the offence, and thereafter escaped,
without being noticed by any person residing in or present
within the vicinity of the place of occurrence. The absence of
any independent witness supporting this aspect of the
prosecution case assumes significance and casts a doubt on
the version put forward by the prosecution.
30. Further, the evidence of P.W.5 – Umaben Rasiklal Joshi,
assumes significance. She has deposed that, upon noticing the
victim in a burnt condition, she inquired as to what had
happened to him. In response, the victim merely stated that it
was his fate (“Nasib”), but did not disclose the names of the
accused persons or narrate any details regarding the
occurrence of the incident. Similarly, P.W.12, Bharatbhai
Jentilal, who accompanied the victim to the hospital in a fire
brigade vehicle, has deposed that the victim only requested
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that he be taken to the hospital immediately. Except for this,
the victim did not disclose any particulars of the incident nor
did he attribute any overt act to the present respondent-
accused or the co-accused. The conduct of the victim in not
disclosing the names of the assailants or the manner of the
occurrence to the first persons who came to his aid assumes
considerable significance. Had the victim been in a position to
identify and implicate the assailants, it would have been
natural for him to disclose such facts at the earliest available
opportunity. The absence of any such disclosure, therefore,
constitutes a circumstance that warrants careful scrutiny while
evaluating the reliability of the subsequent dying declarations
relied upon by the prosecution.
31. P.W.7 – Dr. Jayantilal Gordhanbhai Khant, who admitted
the victim to the hospital, has deposed that he inquired with
the victim regarding the incident. The victim informed him that
two unknown persons had come to his hutment and set him on
fire. Significantly, the victim did not disclose the names or
identities of the assailants to the doctor. Likewise, P.W.10,
Navinbhai Balashankar Bhatt, who was serving as a Head
Constable at the hospital police chowky at the relevant time,
also made inquiries with the victim. However, the victim did
not reveal the names of the accused persons to him either.
P.W.10 thereafter forwarded a yadi to the concerned police
station, wherein no names of any accused persons were
mentioned. Thus, the evidence on record indicates that the
victim did not disclose the names of the assailants to P.W.5,
who first inquired about the incident, to P.W.12, who escorted
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him to the hospital, to P.W.7, the doctor who admitted and
treated him, or to P.W.10, the Head Constable posted at the
hospital police chowky. On the contrary, the victim informed
P.W.7 and P.W.10 that two unknown persons had come to the
place of occurrence and set him on fire. It further emerges
from the testimony of P.W.7 that, at the time of admission, the
victim was in a very critical condition. His general condition
was poor and his health was rapidly deteriorating. This
circumstance assumes importance while assessing the
reliability and evidentiary value of the subsequent statements
attributed to the victim, particularly when those statements
contain details that were not disclosed by him at the earliest
available opportunity.
32. P.W.8, S.S. Goswami, Police Inspector, who recorded the
complaint of the victim, has admitted in his cross-examination
that prior to recording the complaint, he had not obtained any
endorsement from the Medical Officer regarding the mental
fitness of the victim to make a statement. He further admitted
that the victim had sustained burn injuries all over his body
and that his general condition was extremely poor and
continuously deteriorating. P.W.8 has also admitted that while
recording the complaint, he initially mentioned the name of the
accused as “Jitesh”, which was subsequently corrected to
“Nitesh”. Significantly, he admitted that he had not put his
initials against the said correction. Similarly, P.W.3 – Premjibhai
Tapubhai Sipariya, Executive Magistrate, who recorded the
dying declaration has admitted in his cross-examination that
the victim did not initially respond to his questions, whereupon
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he called the duty doctor viz. P.W.6 – Dr.Jaswantrai Shantilal
Vishani. He further admitted that even when he asked the
victim his name, the victim responded only after the doctor
arrived. According to P.W.3, the victim answered the questions
only after each question was repeated three to four times. He
has categorically deposed that the victim’s responses were
very slow, halting, piecemeal in nature and made in a broken
voice. P.W.3 further admitted that he had not obtained any
medical opinion regarding the mental fitness of the victim
before recording the dying declaration. He also admitted that
the entire body of the victim had sustained burn injuries and
that the victim was unable to open his eyes. Significantly,
P.W.3 also admitted that while recording the dying declaration,
he initially mentioned the name of the accused as “Jitesh”,
which was thereafter corrected to “Nitesh”. Thus, the evidence
of P.W.3 and P.W.8 clearly indicates that at the time of
recording the complaint as well as the dying declaration, the
victim was in a highly precarious physical condition. The victim
was not responding to questions promptly and was able to
answer only after repeated prompting. His responses were
slow, fragmented and delivered in a broken voice.
Furthermore, neither P.W.3 nor P.W.8 obtained any
certification or endorsement from the attending Medical Officer
regarding the mental fitness of the victim before recording his
statement. The evidence also reveals that both witnesses
initially recorded the name of the accused as “Jitesh” and
subsequently corrected it to “Nitesh”, without any satisfactory
explanation for such correction. These circumstances assume
considerable significance while evaluating the authenticity,
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voluntariness, and reliability of the dying declaration and the
statement recorded by the police.
33. P.W.1, the Medical Officer who conducted the post-
mortem examination of the deceased, has admitted in his
cross-examination that the palms of the hands and the soles of
the feet were not burnt. He further admitted that injuries of
such nature could also be sustained in a case where a person
attempts to commit suicide by setting himself on fire. P.W.1
has also deposed that if a person pours kerosene upon another
and the victim resists such an attempt, it is likely that
kerosene would spill upon the body or clothes of the assailant
as well. In this regard, the evidence of P.W.13, the
Investigating Officer, assumes significance. He has admitted in
his cross-examination that the clothes of the present
respondent-accused were never seized during the course of
investigation. Consequently, no effort was made to ascertain
whether the clothes of the accused bore any traces of
kerosene or any other incriminating material. The Investigating
Officer further admitted that he could not gather any clue
regarding the identity or involvement of the alleged co-
accused. He also admitted that the bicycle allegedly used in
the commission of the offence was never recovered or seized.
The Investigating Officer has further admitted that the
container (can) allegedly containing kerosene was not sent to
the F.S.L. for examination and no attempt was made to obtain
or compare fingerprints from the said article with those of the
accused. Thus, several important aspects of the investigation
remained unexplored, resulting in the absence of corroborative
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scientific evidence connecting the accused with the crime.
Significantly, P.W.13 also admitted that during the course of
investigation, he received an application from the father of the
present respondent-accused asserting that the accused was
not present at the place of occurrence at the relevant time. He
further admitted that he conducted an inquiry into the
allegations made in the said application and found substance
therein. However, despite such finding, he did not place on
record any of the documents, statements or materials
collected during the course of that inquiry. These admissions
on the part of the Investigating Officer reveal serious lapses in
the investigation. The failure to seize material evidence, to
pursue scientific examination of relevant articles to investigate
the alleged co-accused effectively and to place on record the
material collected pursuant to the inquiry into the accused’s
plea of absence from the scene of occurrence, are
circumstances which assume significance while assessing
whether the prosecution has succeeded in proving its case
beyond reasonable doubt.
34. In light of the aforesaid evidence on record, it is difficult
to rely the version of the prosecution that the accused along
with co-accused came at the hutment of the victim and poured
the kerosene and set him on fire. The evidence placed on
record had not inspire the confidence of the Court when more
particularly, the version of the victim before the witness is
different. In case of Paniben (Smt.) versus State of
Gujarat reported in (1992) 2 SCC 474, the Hon’ble Apex
Court laid down the following principles governing the dying
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declaration:-
“18. …….. (i) There is neither rule of law nor of prudence
that dying declaration cannot be acted upon without
corroboration. (Munnu Raja v. State of M.P.17 )
(ii) If the Court is satisfied that the dying declaration is true
and voluntary it can base conviction on it, without
corroboration. (State of U.P. v. Ram Sagar Yadav18 ;
Ramawati Devi v. State of Bihar19 ).
(iii) This Court has to scrutinise the dying declaration
carefully and must ensure that the declaration is not the
result of tutoring, prompting or imagination. The deceased
had opportunity to observe and identify the assailants and
was in a fit state to make the declaration. (K.
Ramachandra Reddy v. Public Prosecutor20) .
(iv) Where dying declaration is suspicious it should not be
acted upon without corroborative evidence. (Rasheed Beg
v. State of M.P.21)
(v) Where the deceased was unconscious and could never
make any dying declaration the evidence with regard to it
is to be rejected. (Kake Singh v. State of M. P.22)
(vi) A dying declaration which suffers from infirmity cannot
form the basis of conviction. (Ram Manorath v. State of
U.P.23) 16 (1992) 2 SCC 474 17 (1976) 3 SCC 104 18
(1985) 1 SCC 552 19 (1983) 1 SCC 211 20 (1976) 3 SCC
618 21 (1974) 4 SCC 264 22 1981 Suppl. SCC 25 23 (1981)
2 SCC 654 Criminal Appeal No.485 of 2012
(vii) Merely because a dying declaration does not contain
the details as to the occurrence, it is not to be rejected.
(State of Maharashtra v. Krishnamurti Laxmipati Naidu24)
(viii) Equally, merely because it is a brief statement, it is
not be discarded. On the contrary, the shortness of the
statement itself guarantees truth. (Surajdeo Oza v. State of
Bihar25).
(ix) Normally the court in order to satisfy whether
deceased was in a fit mental condition to make the dying
declaration look up to the medical opinion. But where the
eye witness has said that the deceased was in a fit and
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conscious state to make this dying declaration, the
medical opinion cannot prevail. (Nanahau Ram v. State of
M.P.26).
(x) Where the prosecution version differs from the version
as given in the dying declaration, the said declaration
cannot be acted upon. (State of U.P. v. Madan Mohan27).”
35. Further, in case of Irfan @ Naka versus The State o
Uttar Pradesh reported in 2023 LiveLaw (SC) 698, in
Paragraph No.62, the Hon’ble Apex Court has observed as
under:-
“62. There is no hard and fast rule for determining when a
dying declaration should be accepted; the duty of the Court is
to decide this question in the facts and surrounding
circumstances of the case and be fully convinced of the
truthfulness of the same. Certain factors below reproduced
can be considered to determine the same, however, they will
only affect the weight of the dying declaration and not its
admissibility: –
(i) Whether the person making the statement was in
expectation of death?
(ii) Whether the dying declaration was made at the earliest
opportunity? “Rule of First Opportunity”
(iii) Whether there is any reasonable suspicion to believe the
dying declaration was put in the mouth of the dying person?
(iv) Whether the dying declaration was a product of
prompting, tutoring or leading at the instance of police or any
interested party?
(v) Whether the statement was not recorded properly?
(vi) Whether, the dying declarant had opportunity to clearly
observe the incident?
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(vii) Whether, the dying declaration has been consistent
throughout?
(viii) Whether, the dying declaration in itself is a
manifestation / fiction of the dying person’s imagination of
what he thinks transpired?
(ix) Whether, the dying declaration was itself voluntary?
(x) In case of multiple dying declarations, whether, the first
one inspires truth and consistent with the other dying
declaration?
(xi) Whether, as per the injuries, it would have been
impossible for the deceased to make a dying declaration?”
36. Now, adverting to the facts of the present case, the
victim kept on changing his version. Firstly, he told regarding
occurrence of incident as his fate. Further, he did not tell
anything to P.W.10, who taken him to hospital even he did not
tell the name of accused persons to the doctor, who recorded
the history and he only stated that two unknown person came.
Further, he also did not reveal the name of accused persons to
the Head Constable, who visted him after his admission in the
hospital. P.W.3, who recorded the dying declaration and P.W.8,
who recorded the complaint initially mentioned the name of
the present respondent-accused as “Jitesh”, which was
corrected to Nitesh. The Investigating Officer has not inquired
as to whether “Nitesh” and “Narendra” are one and the same
person. The condition of the victim when he was admitted to
the hospital was very poor, as noted by P.W.7 in the medical
papers. In these facts and circumstances of the case, the
learned Sessions Judge has rightly not believed the dying
declaration.
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37. It is well settled by catena of decisions that the an
Appellate Court has full power to review, re-appreciate and
reconsider the evidence upon which the order of acquittal is
founded. However, Appellate Court must bear in mind that in
case of acquittal there is double presumption in favour of the
accused. Firstly, the presumption of innocence is available to
him under the fundamental principle of criminal jurisprudence
that every person shall be presumed to be innocent unless he
is proved guilty by a competent Court of law. Secondly, the
accused having secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and strengthened
by the trial Court.
38. Further, if two reasonable conclusions are possible on the
basis of the evidence on record, the Appellate Court should not
disturb the finding of acquittal recorded by the trial Court.
Further, while exercising the powers in appeal against the
order of acquittal, the Court of appeal would not ordinarily
interfere with the order of acquittal unless the approach of the
lower Court is vitiated by some manifest illegality and the
conclusion arrived at would not be arrived at by any
reasonable person and, therefore, the decision is to be
characterized as perverse. Merely because two views are
possible, the Court of appeal would not take the view which
would upset the judgment delivered by the Court below.
However, the Appellate Court has a power to review the
evidence if it is of the view that the conclusion arrived at by
the Court below is perverse and the Court has committed a
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manifest error of law and ignored the material evidence on
record. A duty is cast upon the Appellate Court, in such
circumstances, to re-appreciate the evidence to arrive to a just
decision on the basis of material placed on record to find out
whether the accused are connected with the commission of the
crime with which he is charged.
39. In the instance case, learned APP failed to point out any
cogent and incriminating evidence against the accused
persons, which may connect the accused persons with the
commission of the offence beyond reasonable doubt. At this
stage, it would be profitable to refer to the judgment of Apex
Court in the case of Chandrappa & Ors. Vs. State of
Karnataka reported in 2007 (4) SCC 415. The relevant
observations made in the said judgment are as under:-
“….. (1) An appellate Court has full power to review,
reappreciate and reconsider the evidence upon which the
order of acquittal is founded; (2) The Code of Criminal
Procedure, 1973 puts no limitation, restriction or condition
on exercise of such power and an appellate Court on the
evidence before it may reach its own conclusion, both on
questions of fact and of law;
(3) Various expressions, such as, ‘substantial and
compelling reasons’, ‘good and sufficient grounds’, ‘very
strong circumstances’, ‘distorted conclusions’, ‘glaring
mistakes’, etc. are not intended to curtail extensive powers
of an appellate Court in an appeal against acquittal. Such
phraseologies are more in the nature of ‘flourishes of
language’ to emphasize the reluctance of an appellatePage 33 of 35
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NEUTRAL CITATIONR/CR.A/1113/1998 JUDGMENT DATED: 24/07/2026
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Court to interfere with acquittal than to curtail the power
of the Court to review the evidence and to come to its own
conclusion.
(4) An appellate Court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of
the accused. Firstly, the presumption of innocence
available to him under the fundamental principle of
criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by the trial
court.
(5) If two reasonable conclusions are possible on the basis
of the evidence on record, the appellate court should not
disturb the finding of acquittal recorded by the trial court.”
40. Applying the aforesaid principle as laid down by the Apex
Court in the case of Chandrappa (supra), it is apparent on
record that no credible evidence had been produced by the
prosecution, which may connect the accused persons in the
alleged crime. The prosecution has miserably failed to prove
the guilt of the accused persons beyond reasonable doubt.
Thus, the Trial Court has not committed any error in
appreciating the evidence on record and in acquitting the
accused persons from the challenges levelled against them.
41. In these facts and circumstances, we are of the
considered opinion that the learned Trial Judge committed no
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NEUTRAL CITATION
R/CR.A/1113/1998 JUDGMENT DATED: 24/07/2026
undefined
error in passing the impugned judgment and order. Hence, the
present appeal deserves to be dismissed.
42. In the result, the appeal fails and is dismissed. The
judgment and order of the Trial Court dated 13.11.1998
stands confirmed. Bail and bail bonds of the accused, if any,
stands discharged. R & P be sent back to the concerned Trial
Court, forthwith. No order as to costs.
(HEMANT M. PRACHCHHAK,J)
(MOOL CHAND TYAGI, J)
GIRISH / ARUN
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