R/CR.A/2543/2009(GJHC240420102009) JUDGMENT DATED: 02/09/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL NO. 2543 of 2009

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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Approved for Reporting Yes No

√

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STATE OF GUJARAT

Versus

YOGESHKUMAR MANGALDAS SUTHAR & ORS.

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Appearance:

MS JYOTI BHATT APP for the Appellant(s) No. 1

KUMAR H TRIVEDI(9364) for the Respondent(s) No. 1,2,3,4

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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

Date : 02/09/2026

ORAL JUDGMENT

CHALLENGE :

1.The present appeal is filed by the appellant – State of Gujarat

under Section 378(1)(3) of the Criminal Procedure Code against the

impugned judgment and order dated 09.09.2009 passed by the

learned Additional Sessions Judge, Third Fast Track Court,

Himmatnagar Camp at Idar (hereinafter referred to as “the trial

Court”) in Sessions Case No.157 of 2008 whereby the trial Court

acquitted the accused from the charges levelled against the accused

for the offences punishable under Section 498A, 323, 306, 114 etc of

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the Indian Penal Code.

FACTS OF THE CASE :

2.Brief facts of the present case are, in nutshell, as under:-

2.1It is the case of the prosecution that younger sister of

complainant namely Parul married to accused No.1 in the year 1995

and out of the said wedlock, she delivered two children viz. one

daughter namely Palak and one son namely Tarang and initially the

marriage life of husband and wife was going on smoothly for a period

of seven years. It is alleged that thereafter, accused No.1 subjected

mental and physical torture to Parul and other accused instigated him

and whenever, Parul visited the residence of the complainant, she

complained about ill-treatment at the hands of accused No.1 and

children also informed about the mental and physical torture to the

complainant. It is also alleged that prior to one month, Parul came to

the residence of the complainant as she was severely beaten by

accused No.1, however, Parul was persuaded at the residence of

accused to save her matrimonial life, but mental and physical

harassment was continued at the hands of the accused. It is further

alleged that on account of mental and physical harassment and

torture on the part of accused No.1, she committed suicide by

sprinkling kerosene on her and children and ignited herself along with

the children, due to which, they succumbed to the injuries.

3.A complaint came to be registered as C.R.No.I-47 of 2008 at

Jadar Police Station for the aforesaid offences. During the

investigation, the accused was arrested.

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4.After completion of investigation, as the sufficient evidence was

found, the police has arrested the accused and has filed the charge-

sheet against the accused before the Judicial Magistrate (First Class),

Patan wherein it was registered as Criminal Case No.1905 of 2008. As

the offence was triable by the Court of Sessions, the Judicial

Magistrate (First Class) has committed the case under Section 209 of

the Criminal Procedure Code to the Court of Sessions wherein it has

been registered as Sessions Case No.157 of 2008.

5.The charge against the accused came to be framed by the trial

Court vide Exhibit 3 for the aforesaid offences. On being explained it

to them, the accused pleaded not guilty to the charge and pleaded for

trial. Hence, the case was tried by the trial Court.

6.It appears from the records that the prosecution has examined

the following witnesses:-

P.W.1Jaiminbhai Babulal Suthar Exhibit 10

P.W.2Babubhai Revabhai Suthar Exhibit 13

P.W.3Arunaben Babulal Suthar Exhibit 15

P.W.4Dilipkumar Kantilal Suthar Exhibit 16

P.W.5Rajendrakumar Kalidas Varma Exhibit 23

P.W.6Dr. Pankajkumar Himatsinh Katara Exhibit 27

P.W.7Dr.Kalpnaben Dilipkumar Chauhan Exhibit 33

P.W.8Pravinbhai Kacharabhai Vankar Exhibit 39

P.W.9Manharbhai Maganbhai Exhibit 43

P.W.10Kanabhai Hirabhai Exhibit 49

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P.W.11Keshabhai Poojabhai Patel Exhibit 51

7.The defence has also examined the witness namely D.W.1 Dr.

Amrut Satramdas Bodani at Exhibit No. 65.

8.In addition to this, the prosecution has also produced the

following documentary evidence:-

Sr.NoParticular Exhibit

1 Original complaint 11

2 Panchnama of the scene of offence 18

3 Inquest panchnama 19

4 Panchnama of sample seized from the scene of

offence

20

5 Panchnama of the physical condition of the

accused

21

6 Cause of death certificate 30

7 P.M. report 31

8 Primary opinion of the FSL 58

9 Forwarding note for sending muddamal to the FSL59

10Receipt of the FSL with regard to receiving

muddamal

60, 61

11Opinion of the FSL 62

12Note of telephone vardhi 53

13List and the order passed thereon 56

14Notification given by Mangaldas 54

15Note/ List 55

16Yadi for filling up inquest 52

17Jadar Out F.T.P. 57

18Receipt for giving deadbody 14

19List of ornaments 12

20Inquest panchnama 22

21Medical certificate of Tarangbhai 24

22Case paper of Tarangbhai 25

23Case paper of Palakben 26

24Yadi written for preparing postmortem 28

25Police report to be sent to the Civil Surgeon along

with the dead body kept for postmortem

29

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examination

26Form to be used for preparing the postmortem

examination report when sending the viscera for

examination

32

27Yadi written by the Investigating Officer to Medical

Officer

34

28Police report of sending body to Civil Surgeon

along with body sent for postmortem examination

35

29Medical certificate of Palakben 36

30Yadi with regard to examination of the deadbody37

31Yadi written by PSO to the Executive Magistrate40

32Dying declaration 41

33Yadi written for giving copy of D.D.B. 42

34Statement of Palakben before A.H.C. 44

35Telephone Vardhi 45, 46

36Note / List 47

37Copy of station diary 50

38Yadi for filling up the inquest 52

39Note / List 56

9.After closure of the evidence, the statement of the accused

under section 313 of the Criminal Procedure Code, 1973 has been

recorded wherein they denied of having committed any offence and

have stated that they are innocent.

10.After hearing both sides and considering the evidence on

record, the Trial Court by impugned judgment and order has acquitted

the accused from all the charges levelled against them.

11.Heard Ms.Jyoti Bhatt, learned Additional Public Prosecutor

appearing for the appellant – State of Gujarat and Mr.Kumar Trivedi,

learned counsel appearing for respondents at length. Mr.Trivedi,

learned counsel has submitted that during the pendency of the

appeal, accused No.2 – Mangaldas Dalsukhram Suthar has expired for

which he has tendered a copy of the death certificate which is taken

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on record. The appeal qua accused No.2 stands abated accordingly.

SUBMISSIONS ON BEHALF OF THE APPELLANT – STATE OF

GUJARAT:

12.Ms.Bhatt, learned Additional Public Prosecutor for the appellant

– State of Gujarat has submitted the same facts which are narrated in

the memo of appeal. She has taken through the relevant evidence of

the witnesses and the documentary evidence to this Court and

submitted that the impugned judgment and order is illegal, unjust and

against the facts of the case. She has submitted that the prosecution

witnesses have supported the case of the prosecution, however, the

trial Court, without appreciating the evidence of the witnesses, has

committed an error in discarding the evidence of the witnesses and,

therefore, the judgment and order deserves to be quashed and set

aside. She has also submitted that the ingredients of Sections 498(A)

and 306 of the IPC are attracted, however, the trial Court has not

considered the same and committed an error of facts and law in

passing the acquittal order. She has submitted that the prosecution

has established the fact that there was constant mental and physical

harassment at the hands of accused, for which accused No.2 to 4

instigated accused No.1 and the sufficient evidence produced on

record to prove the guilt of the accused. She has submitted that the

independent witnesses have supported the case of the prosecution

and the corroborative evidence of the deceased was not considered

by the trial Court while passing the impugned judgment and order of

acquittal. She has submitted that though the prosecution has

produced the relevant documentary evidence in support of the case,

but the trial Court has discarded the same. She has submitted that

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the trial Court has disbelieved the case of the prosecution on the

ground that the relatives of the deceased have not supported the

case of the prosecution and also not appreciated the evidence in the

form of dying declaration, panchnama etc. She has submitted that the

trial Court has failed to appreciate the fact that the muddamal was

recovered from the accused, therefore, the trial Court ought to have

convict the accused for the charges levelled against them.

12.1Ms.Bhatt, learned Additional Public Prosecutor has submitted

that though there was ample evidence produced by the prosecution

with regard to involvement of the accused in the crime in question,

however, the trial Court has failed to appreciate the oral as well as

documentary evidence. She has submitted that the trial Court ought

to have appreciated the evidence in the nature of dying declaration at

Exhibit 41 of of Palak (daughter of respondent No.1 and grand-

daughter of respondent No.2 and nice of respondent Nos.3 and 4)

recorded by the Executive Magistrate and if statement recorded

under Section 161 of the Cr.P.C. was considered to be dying

declaration wherein the deceased Palak specifically stated that

though there was a dispute between her mother Parulben and

respondent No.1, they were quarreling and during the quarrel,

accused No.1 had beaten the deceased Parulben being mother of

deceased Palak. She has submitted that they left the Ahmedabd and

her maternal uncle being complainant who dropped his sister namely

Parulben with her both children at her in-laws place i.e. respondent

No.2 who was retired teacher and stayed at Village: Daramli, Taluka:

Idar, District : Samarkantha where on 19.08.2008 in early hours, she

was pouring kerosene on children and set them fire and, thereafter,

she herself pouring kerosene and set at ablaze, due to which Parul

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(wife of accused No.1) and Palak i.e. daughter of Parul and accused

No.1 died and son Tarang i.e. of Parul and accused No.1 sustained

serious burn injury who was not at present living with accused No.1

and prosecuting his study in master of B.H.M.S. She has submitted

that though the said evidence reveals involvement of the accused in

the alleged crime, the trial Court discarded the said piece of evidence

on the ground that the said documents namely dying declaration and

the statement under Section 161 did not inspire any confidence and

not find truthful. She has submitted that at the time of death of wife

and daughter, accused No.1 was not remained present as the dead

bodies were received by the grandfather i.e. accused No.2 and father

of deceased Parul. It is submitted that in cremation ceremony,

accused No.1 was not remained present, of course, the complainant

and his family were also not remained present in in cremation

ceremony took place at Village: Daramli, however, the conduct of

accused No.1 requires to be seen that he lost his wife and daughter,

despite this, he did not remain present either at the place. That the

postmortem of wife and daughter were performed at two different

places and therefore accused No.1 was was required to be held guilty

and liable for the alleged incident, however, the said aspect has not

been properly appreciated and considered by the trial Court.

12.2In support of her submissions, Ms.Bhatt, learned Additional

Public Prosecutor has relied upon the decision of the Hon’ble Supreme

Court in the case of Laxman Vs. State of Maharashtra reported in

(2002) 6 SCC 710 wherein the Hon’ble Supreme Court has observed

that merely dying declaration recorded by the Executive Magistrate is

not certified by the doctor or not having any endorsement with regard

to the mental condition of the deponent, the dying declaration cannot

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be ignored with regard to acceptability of the dying declaration. She

has also relied upon the subsequent decision of the Coordinate Bench

of this Court in the case of State of Gujarat Vs. Chhaganbhai

Kaliyabhai Bhabhor reported in 2024 (0) JX (Guj) 1289.

12.3Ms.Bhatt, learned Additional Public Prosecutor has urged that

the appeal deserves to be allowed and the impugned judgment and

order of acquittal deserves to be quashed and set aside.

SUBMISSIONS ON BEHALF OF THE RESPONDENTS – ACCUSED :

13.Mr.Trivedi, learned counsel appearing on behalf of the

respondents – accused has submitted that the trial Court has not

committed any error of facts and law in passing the impugned

judgment and order of acquittal in favour of the accused. He has

submitted that there is material contradiction in both the dying

declaration recorded by the Investigating Officers with regard to the

cause of death and with regard to the allegation of mental and

physical torture. He has submitted that the dying declaration in the

form of FIR and the dying declaration recorded by the concerned

Investigating Officer there is material contradiction which goes to the

route of the matter and, therefore, the trial Court has rightly passed

the impugned judgment and order of acquittal. He has submitted that

the marriage span of more than twelve years and out of the said

wedlock, they have two children and during these years there was not

a single iota of evidence with regard to the allegation made in the

dying declarations and no any complaint made by the deceased

before any of the family members. He has submitted that the

impugned judgment and order passed by the trial Court is in

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consonance with the facts of the case and in consonance with the

settled legal principles pronounced by the Hon’ble Supreme Court and

thus, the impugned judgment and order of acquittal is required to be

confirmed and the appeal being meritless deserves to be dismissed.

13.2Mr.Trivedi, learned counsel has submitted that deceased Parul

married to accused No.1 before about 12 years and their marriage

span was for more than 12 years and during the wedlock, Parul

delivered two children namely Palak and Tarang and the marriage life

of the husband and wife was going on smoothly and after some time,

the dispute took place between the accused. He has submitted that

on 18.08.2008 in the intervention of accused No.2, deceased Parul

with two children dropped at Village: Daramli by P.W.1 and in the

night of 18.08.2008, the deceased Parul committed such offence and,

therefore, at the time of incident accused No.1 was not present. He

has submitted that so far as accused No.2 against whom the

deceased Palak attracted is concerned, on the date of incident, there

was hit of exchange between father-in-law and daughter-in-law i.e.

respondent No.2 and deceased Parul. He has submitted that deceased

Palak was suffering from major depression for which she was treated

at Ahmedabad by Dr. Amrut Santramdas Bodani and she was

referred by Dr. Atulbhai, family physician of accused No.1 and from

the medical papers more particularly document at Exhibit 67 wherein

it was stated that deceased Palak was suffering from major

depressive disorder. He has submitted that the said fact was not

brought to the notice of the Court below by the prosecution and,

therefore, the defence has examined the said doctor as D.W.1 and

through his evidence the said fact was brought on record. He has

submitted that deceased Parul time and again quarreled with accused

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No.1 and even the accused No.1 was taking deceased to the doctor

and some time the complainant No.1 was also accompanied with

deceased Parul visiting the doctor.

13.4Over-and-above the aforesaid oral arguments, Mr.Trivedi,

learned counsel has made the following arguments :-

1. The trial Court below has rightly observed that there is

absence of intention to commit crime on part of accused

persons and means rea on part of accused persons.

2. The trial Court below has rightly observed that in marriage

span of 13 years between Parulben and Yogeshkumar there

was not a single complaint of harassment and all the

prosecution witness have failed to point out even one instance

of quarrel or harassment, which the trial Court rightly declined

to elevate into "cruelty" within the meaning of Section 498A

IPC.

3. Family of the complainant consists of his parents (PW-02 &

03), his wife (not examined) and elder brother Utpalbhai (not

examined), Utpalbhai's Wife (Not examined) all these persons

used to live as joint family, within 10 minutes distance of the

house of the Parulben. (another sister of complaint namely

Pratibhaben is also not examined, however her husband

Dilipbhai is examined as PW-04). Also, Complainant belongs to

Suthar community, which has its own constitution and during

the marriage span of 13 years no complaint was ever made to

the leaders of community.

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4. It is Duty of prosecution to prove case beyond reasonable

doubt and in present case the respondent were acquitted by

the Ld. Trial court hence the present respondents have double

presumption in their favour.

5. Dispute regarding Ornaments and Streedhan is reason for FIR:

Learned trial Judge has rightly concluded that the FIR is an

afterthought as Exh.12 list was given by the P.W.1 to the

respondent No.2 on 19.08.2008 and on same day the

respondents could not give the ornaments back to the

complainant hence from 11:00 am to 06:00 pm, complainant

waited for the ornaments and when the ornament on same day

were not given to him he did not let any of his relatives attain

last rites of the deceased and also later decided to lodged FIR

and the said fact is evident from the deposition of PW1

wherein he has specifically stated that respondent No.2 did not

act as per his liking hence FIR was filed.

P.W.1 deposed that due to societal norms he did not attend

the rites of the Palakben and Parulben, however from the

deposition of PW-2 it is evident that there was no specific

reason to not to attend last rites rituals, thus it is evident that

only reason to not attend last rites and post rites ritual was

property dispute. Hence learned trial Judge was right to

conclude that FIR is an afterthought.

6. The trial Judge has rightly not considered Dying Declaration of

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Palakben, as from the perusal of Dying Declarations at Exhibit

41 and 44 and depositions of P.Ws it is evident that:

PW-1 met victim Tarang and had conversation with him

however witness did not have any conversation with Palak

(which confirms that the Palak was unconscious and was not

able to speak).

PW-1 states that Dilipkumar (PW-4) came first to Hospital,

however from the deposition of PW-4 it is evident that he did

not have any conversation with children hence it is proved that

victim palak was not in any condition to speak.

PW-1 deposed that for all the time Palak took treatment,

atleast one of the relatives were constantly with her, thus

statement of Palak is tutored and not natural and also words

were put into her mouth.

PW-5 deposed that Palak sustained 100% burn and 2 to 4

Degree burns and was in no condition to speak during

treatment and also has specifically admitted that Palak was in

no condition to give any statement.

Case papers produced by the PW-5 clearly indicated that the

Palak was under heavy medication and also on 'Oxygen Flow'.

From the perusal of DDs it is evident that both the DDs

* do not have Endorsement of Doctor,

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* do not have Fitness Certificate of Palakben issued by Doctor,

* do not have Endorsement of Nurse (as Nurse was present

during DD reflected in PW-8),

* do not have endorsement of consciousness or able-ness of

victim,

* do not have videography of statement

* Thumb impression of Palak is taken at bottom of DD, however

no ink is found on thumb of victim Palak in inquest or PM.

* In whose presence thumb was taken is not reflected.

- From the Perusal of Language and contents of both the DDs it

creates doubt on genuineness of DD:

* It is highly improbable that 12-year-old victim will use such

vocabulary and sentences.

* It is not in question-answer form.

* Language of DD suggest that 12-year-old and 7-year-old child

along with mother took decision of committing suicide which is

highly improbably as contrary to history given by Taral to

Doctor.

* Also, language of DDs appears to be answers to a leading

questions and not natural language of victim herself.

* Also, language suggests that words were put into mouth of the

Palak and were leading.

* Palak in statement is alleged to have stated that "it is true that

there was some verbal argument with the respondent No.02"

which itself suggest that words were put in the mouth of the

child.

* Palak in statement is alleged to have stated that "it is true that

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there was regular scuffle with the father" which itself suggest

that words were put in the mouth of the child.

- Even if the DDs at Exh 41 and 44 are accepted allegation

levelled in the said DDs are general in nature and also there

are no allegations against respondent No. 01, 03 and 04.

7. Both the families had very cordial relations with each other

and until the 2 days before the incident i.e. on 16.08.2008 (on

Rakshabandhan) Prulben along with her family has spent her

whole day at the House of Complainant, also Pws in there

deposition accepts that they regularly used to visit the house

of Parulben and Parulben regularly used to visit their house

during the course of 13 years of marriage span. Thus, the

allegations of cruelty and harassment is not supported by the

evidence.

8. That the prosecution has attempted to suppress the evidence

collected during the course of investigation and also fair and

proper investigation is not conducted by the Investigating

Officer and from the perusal of the evidence it is evident that:

* Immediate neighobours Shantaben, Pravibhal, Mukeshbhai,

Jagrutiben and other neighbours are not examined by the IO.

(hence it is evident that none of the witnesses have supported

claim of the complainant).

* From the perusal of 'Telephone vardhi' at Exh 45, it is evident

that Ld. Doctor has informed that 2 burns victims namely Palak

and Tarang are admitted in the Hospital (however no

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statement of Tarang is produced).

* From perusal of 'Telephone vardhi' at Exh 46, it is evident that

Ld. Doctor namely Rita Sinha has informed that Palak has

scummed to death. (However Dr. Rita Sinha has not been

examined by prosecution)

* From perusal at Exh-47, it is evident that said is a 'Suchipatra'

about the AD No, 0/08 CrPC 174, said AD was registered on the

basis information provided by Dr. Rita Sinha and the

investigation was deputed to H.C. Hargovindbhai Prabhatbhai.

(However Dr. Rita Sinha and H.C. Hargovindbhai Prabhatbhai

were not examined and not cited as witness)

* Best witnesses Tarang and all neighbors; non are examined by

prosecution.

* IO admits that he has taken statement of Neighbors of

Parulben at Ahmedabad and Daramli and Neighbors say no

quarrel between Paraulben and Yogeshbhai took place.

* FIR against deceased Parul for murder of Palak was registered

and as Parulben had died said was abetted.

9. Incident has taken place at Village: Daramli and It was

respondent No.02 who took all the victims at hospital and

called the respondent No.01 and complainant and his family

members. (108 ambulance in which children where brought,

no DD or history was taken in 108 ambulance.)

10.No complaint of cruelty of any kind was lodged at any time

during the subsistence of the marriage not to the police, not to

family elders.

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11.All the witness in deposition stated that between the incident

and FIR they have given information to Police at Himatnagar

Civil Hospital and at place of incident at Daramli, witnesses

have given statements to the Police pursuant to AD Case

inquiry at EXH-47 and also pursuant to information at Exh 54

and said was registered as Jadar AD 15/2008 CrPC 174 and the

said statements have not been produced and said

investigation was suppressed by the prosecution. All the

investigation conducted under AD Case has been suppressed

and not produced by prosecution hence the said trial is an

unfair trial.

12.Omnibus implication of Respondent Nos. 3 and 4 married

daughters of the family admittedly residing separately at their

own matrimonial homes and not a single specific act or

allegation is attributed to either of them individually.

13.Independent, unrebutted medical (psychiatric) evidence of

DW-1 establishing a pre-existing depressive illness in the

deceased, which clearly explain the sudden unwarranted act of

suicide by Parulben and taking the life of Palakben with her,

thus the Ld. Judge has rightly come to conclusion that offence

as charged is not made out and accused persons are required

to be acquitted.

DECISIONS RELIED UPON ON BEHALF OF THE RESPONDENTS :

13.5In support of his submissions, Mr.Trivedi, learned counsel has

relied upon the following decisions of the Hon’ble Supreme Court as

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well as this Court:-

(1)Mariano Anto Bruna Vs. Inspector of Police, (2023) 15 SCC 560;

(2)Dr.Sunil Kumar Sambhudayal Gupta Vs. State of Maharashtra,

(2010) 13 SCC 657;

(3)Ramesh Kumar Vs. State of Chhattisgarh, (2001) 9 SCC 618;

(4)Irfan @ Naka Vs. State of Uttar Pradesh, 2023 (11) Scale 477;

(5)Nipun Aneja Vs. State of Uttar Pradesh, 2025 (1) ALT (Cri) SC

113;

(6)Yaddnapudi Madhusudhana Rao Vs. State of Andhra Pradesh,

2023 JX (SC) 1299;

(7)Jaydeepsinh Pravinsnh Chavda and others Vs. State of Gujarat,

(2025) 2 SCC 116;

(8)Amalendu Pal @ Jhantu Vs. State of West Bengal, (2010) 1 SCC

707;

(9)State of Gujarat Vs. Ashokbhai Kanjibhai Chorala, Criminal

Appeal No. 975 of 2024;

(10)State of Gujarat Vs. Vaniya Mukeshkumar Jethalal, 2024 (0) JX

(Guj) 1398;

(11)Rameshbhai Popatbhai Vs. State of Gujarat, 2016 (0) JX (Guj)

251;

(12)Sanjaykumar Shantilal Panchal Vs. State of Gujarat, 2016 (0) JX

(Guj) 309;

(13)Shantuben W/o. Lalji Nanji Vs. State of Gujarat, 2025 (0) JX

(Guj) 1632;

(14)State of Gujarat Vs. Mahobatsinh Narendrasinh Jadeja, 2024

(0) JX (Guj) 1692;

(15)State of Gujarat Vs. Anvar Kara Budha (Miyana) & Ors. Criminal

Appeal No. 1746 of 2008;

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ANALYSIS:

14.On perusal of the impugned judgment and order of acquittal

passed by the trial Court, the questions arise for determination are as

under:-

(1)whether the trial Court has rightly justified in passing the

judgment and order of acquittal.

(2)whether the trial Court has failed to appreciate the evidence

oral as well as documentary led by the prosecution in

recording the reasons.

(3)whether the trial Court has failed to appreciate the documents

i.e. dying declaration of Palak and statement under Section

161 recorded by the Police Officer at Exhibit 44.

(4)whether there are any illegality, irregularity and perversity in

the impugned judgment and order of acquittal.

CONCLUSIONS :

15.Considering the aforesaid submissions and the aspects

involved, this Court is first required to examine the facts of the case.

The deceased, Parul, married to accused No.1 about twelve years

prior to the incident. During the subsistence of the marriage, the

deceased, along with her husband and two children, initially, resided

in rented premises at Ahmedabad and, thereafter, they purchased

their own house and started residing therein. During the wedlock,

deceased Parul gave birth to two children, namely, daughter Palak

and son Tarang. It is further the case of the prosecution that, initially,

the matrimonial life of deceased Parul with accused No.1 was going

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on smoothly; however, after about six to seven years, disputes arose

between the husband and wife, on account of which, deceased Parul

was allegedly subjected to mental and physical harassment by

accused Nos.1 and 2. That accused No.2 was serving as a teacher at

Village Daramli and, after his retirement, he was residing at Village

Daramli along with his wife. He had one son and four daughters, all

were married and residing at their respective matrimonial homes. Out

of the four daughters, two daughters were joined as respondents-

accused in the complaint. That about two days prior to the incident,

on the eve of Rakshabandhan, accused No.1, along with his wife and

children, was at the house of the complainant. The complainant and

his two real brother and sister were residing in the same vicinity and

Utpalbhai, the younger brother of P.W.1, was also residing nearby

along with his wife. Thereafter, on 18.08.2008, a quarrel took place

between the husband and wife and consequently, daughter Palak

informed P.W.1, who was her maternal uncle, that her father and

mother were quarrelling and requested him to come to their house.

Accordingly, P.W.1 reached the house of accused No.1. Thereafter,

the deceased, along with her children, was taken to Village Daramli

and dropped there by the complainant. During the night of

18.08.2008 and in the early hours of 19.08.2008, deceased Parul

allegedly poured kerosene on herself and her children and set herself

and the children ablaze. As a result, Palak sustained burn injuries and

was taken to Sar Pratap General Hospital at Himmatnagar. At that

time, accused No.2 reported the incident as an accidental death, and

the same was referred to Himmatnagar “A” Division Police Station.

That during treatment, Palak succumbed to her injuries, whereas,

Tarang survived and he was thereafter residing with accused No.1

and pursuing his studies at BMNS. In connection with the incident, the

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investigation was carried out. The accused No.2 informed the

complainant about the incident over the telephone, whereupon the

complainant, along with his family members, immediately reached at

Village Daramli, where deceased Parul was found lying injured. Upon

inquiry, the complainant lodged the complaint against the accused.

However, the role of accused Nos.3 and 4 was not described at all in

the complaint, though they were subsequently arraigned as accused

in the alleged offence. Now, on perusal of the documents, namely,

the dying declaration at Exhibit 41 and the statement of deceased

Palak at Exhibit 44, it emerges that deceased Palak had stated as

under:

“Exhibit – 41

Dying Declaration Date: 19/08/2008

My name is Palak Yogeshbhai Suthar, Age: 12 years,

Occupation: Student, Standard-7, Ahmedabad, Naroda.

Today on being asked in person and upon given

introduction as Executive Magistrate and on being asked

further I state that I am under treatment at Civil Hospital,

Himmatnagar and in conscious condition.

On being further asked regarding the incident I state that

an altercation occurred between my father and mother in

our home at Ahmedabad and because of the

altercation/quarrel, three of us including me along with my

mother and Tarang, my younger brother came to Daramli.

My mother came to Daramli.

Thereafter she talked to my grandfather and to the elder

brother of my father on telephone regarding divorce and it

was heard by me. That conversation took place with my

mother and mild altercation had occurred with my

grandfather at Daramli and such fact is true.

Me along with my mother and my brother were sleeping at

our home at Daramli. In between 3:00 to 4:00 hours in the

morning, my mother and we all took the decision to pour

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kerosene and to kill ourselves.

Therefore we poured kerosene and as my mother lit the

matchstick, fire took place. This fact is true. The fact is true

that because of the repeated quarrels between my father

and mother, permanent quarrels used to occur, therefore

because of the dispute my mother took this step.”

Exhibit – 44 Date: 19/08/2008

My name is Palakben D/o Yogeshbhai Mangaldas Suthar,

Age: 12 years, Occupation: Student, Residing at Daramli,

Taluka Idar.

On being asked in person I state that I reside at the

aforementioned address with my mother and father and I

am a student of standard-7.

Today, at approximately 4:00 a.m., my mother, Parulben,

for some reason, poured kerosene over me, my younger

brother Tarang, aged about 7 years, and upon herself. She

then struck a matchstick and set fire to the clothes we

were wearing.

Therefore, all three of us began to burn inside our house.

My mother had locked the door of the house from the

inside. My brother and I screamed for help to save our

lives, therefore the neighbors residing nearby broke open

the door, poured water over us and extinguished the fire.

Among the neighbors who came to our rescue us was

Magandada Barot; apart from him, I do not recognize the

others. Due to the constant harassment inflicted upon us

by my grandfather, Mangaldas, my mother poured

kerosene on the three of us, set my brother and me on fire,

and immolated herself. At present, I am fully conscious and

in a fit state of mind.

This statement of facts has been recorded exactly as

dictated by me, and the same is true and correct.”

16.On perusal of the evidence of P.W.5, Dr. Rajendrakumar Kalidas

Varma, at Exhibit 23, as well as the contents of the dying declaration

and the statement recorded by the Investigating Officer, it emerges

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that the role attributed to accused Nos.1 and 2 cannot be said to

constitute instigation or abetment as contemplated under Sections

306, 498A and 107 of the IPC.

17.P.W.1, Jaiminbhai Babulal Suthar, the complainant and brother

of the deceased, was examined by the prosecution at Exhibit 10 and

was cross-examined at length by the defence. From his cross-

examination, certain facts have emerged. Some family members were

present with deceased Palak, while some of them went to Village

Daramli. Before proceeding to Village Daramli, they had approached

Jadar Police Station for registration of the complaint; however, at that

time, the complaint was not registered, and it was subsequently

lodged by P.W.1. In his cross-examination, P.W.1 admitted that his

real brother, Utpalbhai, along with his wife and family, was residing

nearby, along with other relatives, who were also residing in the

vicinity of the village. He further admitted that none of the family

members of accused No.1 was residing in that area. He also admitted

that, about two days prior to the incident, all of them were present on

the occasion of Rakshabandhan and had happily celebrated the

festival. P.W.1 further admitted that, according to the custom

prevailing in their community, if the family members did not wish to

maintain relations with their son-in-law, i.e. accused No.1, they would

not attend the cremation ceremony or visit the crematorium. He

further stated that, since the conduct of accused No.1 and his family

members was not according to the expectations of the complainant,

P.W.1 lodged the complaint against the accused. The relevant

contents of the deposition of P.W.1 reads as under:

“It is true that from the time we went to Daramli until the

cremation rites, the relatives of Mangaldas did not provide

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any support or cooperation, and, therefore, we lodged a

complaint regarding the incident. If Mangaldas and his

relatives had supported and cooperated with us from the

morning and had remained favourable towards us, perhaps

we would not have lodged the complaint.

Since the members of the community told us not to go to

the funeral, we did not go. We did not want to maintain

relation with Yogeshkumar, and therefore, we did not

attend the last rites. With regard to the clothes and

ornaments of my sister Parulben, discussion had taken

place through the community leaders regarding the matter

after about five or six months of the incident. It is not true

that on 19.08.2008 a discussion had taken place regarding

taking away my sister Parul’s clothes and household

ornaments through the members of the community.”

17.1Looking to the evidence of P.W.1, exaggerations and omissions

are found in his deposition. This witness admitted that, if the accused

had acceded to their demand for settlement of the dispute by

returning the dowry articles, the FIR would not have been lodged.

However, since the accused did not agree to their demand, the

complaint came to be lodged by P.W.1.

18.Now, in light of the above evidence and considering the

deposition of the father of deceased Parul, i.e. P.W.2, it emerges that

certain contradictions and omissions were found in his evidence, as

noticed by the learned trial Court during the course of examination.

Similarly, on considering the evidence of the mother of deceased

Parul, i.e. P.W.3, it appears that she admitted that, on 18.08.2008,

when deceased Parul was not ready and willing to go to her parental

home, she instead chose to go to her in-laws’ house at Village

Daramli. She also admitted that, according to the custom prevailing in

their community, if a person became a widower and intended to

remarry, he would not attend the cremation ceremony. It is further

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admitted that the accused were present at the house and attended

the last rites and rituals of deceased Parul and Palak.

19.In light of the evidence of Dr. Rajendrakumar Kalidas Varma at

Exhibit 23, it appears that, when the injured were brought to the

hospital by their grandfather, i.e. accused No.2, Tarang gave a history

that his mother Parul, had sprinkled kerosene on herself and the

children and set them ablaze. The said witness deposed that

deceased Palak was not in a position to speak, as she had sustained

approximately 90% to 95% burn injuries. On perusal of the medical

papers relating to deceased Palak, it appears that she was on oxygen

and, under such circumstances, the concerned doctor deposed that

deceased Palak was not in a position to speak.

20.On examination and scrutiny of the evidence of the aforesaid

three witnesses, namely, the brother and parents of deceased Parul, it

appears that there was no specific allegation that the accused had, in

any manner, subjected the mental or physical cruelty to deceased

Parul. From the material available on record, it further emerges that

the medical history of the deceased was brought on record. The

deceased had previously undergone treatment for kidney stones and,

after meeting with an accident, she had sustained an injury on her

head and was also suffering from mental illness. All these facts were

brought on record by the defence. Under such circumstances, the

learned trial Court considered the depositions of the witnesses and

recorded its reasons in paragraph 23. The trial Court also considered

the provisions of Sections 498A, 306 and 107 of the IPC and, after

referring to the decisions of the Hon’ble Supreme Court as well as this

Court, passed the impugned judgment and order of acquittal. In view

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of the aforesaid discussion and considering the evidence available on

record, I am of the opinion that the learned trial Court has not

committed any error of fact or law in passing the impugned judgment

and order. No illegality or infirmity is found in the judgment and order

passed by the learned trial Court.

21.It is well settled by catena of decisions that 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 their innocence is further reinforced, reaffirmed and strengthened

by the trial Court.

22.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

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has a power to review the evidence if it is of the view that the

conclusion arrived at by the Court below is perverse and the Court has

committed a manifest error of law and ignored the material evidence

on record. A duty is cast upon the Appellate Court, in such

circumstances, to re-appreciate the evidence to arrive to a just

decision on the basis of material placed on record to find out whether

the accused are connected with the commission of the crime with

which they are charged.

23.It is hereby noted that so far as the ratio laid down by the

Hon’ble Supreme Court in the case of Laxman (supra) is concerned,

there is no other opinion with regard to the acceptability of the dying

declaration as a valid and true evidence. In the present case, in none

of the dying declaration, the prosecution has established that both the

witnesses have not taken care to get endorsement of the doctor nor

the doctor has deposed that he has concealed with regard to the

mental and physical condition of the patient. Though the doctor was

available, the police witnesses have deposed that the concerned

witnesses have not consulted with the doctor at the time of recording

the statement of the deceased in the nature of dying declaration.

Therefore, the decision of the Hon’ble Supreme Court referred to and

relied upon by the learned Additional Public Prosecutor is not helpful

to the facts of the present case. In fact, the ratio laid down by the

Hon’ble Apex Court that in case of different dying declaration, the

acceptability of dying declaration as evidence is required to be proved

beyond reasonable doubt by the prosecution, however, the same has

not been done in the present case.

24.In case of Irfan alias Naka Vs. State of Uttar Pradesh

reported in AIR 2023 SC 4129, the Hon’ble Supreme Court has,

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while dealing general principles, observed in para – 62 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?

(vii) Whether, the dying declaration has been consistent

throughout?

(viii) Whether, the dying declaration in itself is a

manifestation / fiction of the dying persons 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?”

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25.In the case of Rajaram Vs. State of Madhya Pradesh and

others reported in AIR 2023 SC 94, the Division Bench of this Court

has decided the issue with regard to the multiple dying declaration

and in the case of Pawan Kumar Vs. State Of Himachal Pradesh

reported in (2017) 7 SCC 780, the Hon’ble Supreme Court has held

that a certificate of fitness is not the requirement of law. That there

cannot be an absolute rule that a person who has suffered 80% burn

injuries cannot give a dying declaration. The person is said to have

instigated to another person who has a supportive to an act by any

means direct or indirect whether it takes the form of express

conciliation or solely simultaneous or encouragement instigation may

be words or may be in conduct. In the present case, there is no any

material on record which suggests that there is an instigation on

behalf of the accused No.2, 3 and 4 to deceased to commit the

suicide. In the case of Rajendra S/o. Ramdas Kolhe Vs. State of

Maharashtra reported AIR 2024 SC 2682 the Hon’ble Supreme

Court has held and observed in paras – 25 to 29 as under:-

“25. The law relating to dying declaration is now well

settled. Once a dying declaration is found to be authentic

inspiring confidence of the court, then the same can be

relied upon and can be the sole basis for conviction

without any corroboration. However, before accepting such

a dying declaration, court must be satisfied that it was

rendered voluntarily, it is consistent and credible and that

it is devoid of any tutoring. Once such a conclusion is

reached, a great deal of sanctity is attached to a dying

declaration and as said earlier, it can form the sole basis

for conviction.

26. Section 32(1) of the Indian Evidence Act, 1872 deals

with dying declaration. Since the said provision is relevant,

it is extracted hereunder:

[32.] Cases in which statement of relevant fact by person

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who is dead or cannot be found, etc., is relevant. -

Statements, written or verbal, of relevant facts made by a

person who is dead, or who cannot be found, or who has

become incapable of giving evidence, or whose

attendance cannot be procured without an amount of

delay or expense which, under the circumstances of the

case, appears to the Court unreasonable, are themselves

relevant facts in the following cases:-

(1) When it relates to cause of death. - When the

statement is made by a person as to the cause of his

death, or as to any of the circumstances of the transaction

which resulted in his death, in cases in which the cause of

that person's death comes into question.

Such statements are relevant whether the person who

made them was or was not, at the time when they were

made, under expectation of death, and whatever may be

the nature of the proceeding in which the cause of his

death comes into question.

26.1 . Section 32 says that statements made by a person

who is dead or who cannot be found etc., be it in written

form or oral, are themselves relevant facts. As per

situation(1), when the relevant facts relate to the cause of

death, such a statement would be relevant whether the

person who made it was or was not at the time of making

the statement under expectation of death. Such a

statement would be relevant whatever may be the nature

of the proceedings in which the cause of his death comes

into question. The relevancy is not confined to the cause of

his death but also to the circumstances of the transaction

which resulted in his death.

27. In Khushal Rao vs. State of Bombay, AIR 1958 SC

22 this Court examined the principles governing

acceptance of dying declaration. After examining the

relevant provisions of the Evidence Act and various judicial

pronouncements, this Court laid down the following

conclusions:

(i) it cannot be laid down as an absolute rule of law that a

dying declaration cannot form the sole basis of conviction

unless it is corroborated;

(ii) each case must be determined on its own facts,

keeping in view the circumstances in which the dying

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declaration was made;

(iii) it cannot be laid down as a general proposition that a

dying declaration is a weaker kind of evidence than other

pieces of evidence;

(iv) a dying declaration stands on the same footing as

another piece of evidence. It has to be judged in the light

of surrounding circumstances and with reference to the

principles governing weighing of evidence;

(v) a dying declaration which has been recorded by a

competent Magistrate in the proper manner stands on a

much higher footing than a dying declaration which

depends upon oral testimony which may suffer from all the

infirmities of human memory and human character;

(vi) in order to test the reliability of a dying declaration,

the court has to keep in view various circumstances

including the condition of the person concerned to make

such a statement; that it has been made at the earliest

opportunity and was not the result of tutoring by

interested parties.

28. The above conclusions were reiterated by this Court in

Paniben (Smt.) vs. State of Gujarat, (1992) 2 SCC

474. This Court declared that there is neither any rule of

law nor of prudence that a dying declaration cannot be

acted upon without corroboration. However, the court has

to scrutinize the dying declaration carefully and must

ensure that the declaration is not the result of tutoring,

prompting or imagination; the deceased should be in a fit

and proper state to make the declaration. But once the

court is satisfied that the dying declaration is true and

voluntary, it can base conviction on it without

corroboration.

29. This Court highlighted the significance of a dying

declaration in Kundula Bala Subrahmanyam vs. State

of Andhra Pradesh, (1993) 2 SCC 684 . The general

rule is that hearsay evidence is not admissible. Unless the

evidence tendered is tested by cross-examination, it is not

creditworthy. However, Section 32(1) of the Evidence Act

is an exception to this general rule. This Court observed as

under:

18.* * * * * A dying declaration made by person on the

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verge of his death has a special sanctity as at that solemn

moment, a person is most unlikely to make any untrue

statement. The shadow of impending death is by itself the

guarantee of the truth of the statement made by the

deceased regarding the causes or circumstances leading

to his death. A dying declaration, therefore, enjoys almost

a sacrosanct status, as a piece of evidence, coming as it

does from the mouth of the deceased victim. Once the

statement of the dying person and the evidence of the

witnesses testifying to the same passes the test of careful

scrutiny of the courts, it becomes a very important and a

reliable piece of evidence and if the court is satisfied that

the dying declaration is true and free from any

embellishment such a dying declaration, by itself, can be

sufficient for recording conviction even without looking for

any corroboration. * * * * *”

26.The scope and principles are enunciated by the Hon’ble Apex

Court in case of Chandrappa and others Vs. State of Karnataka

reported in (2007) 4 SCC 415, more particularly paragraph Nos.

42 and 43, which was subsequently re-affirmed by the Hon’ble Apex

Court in the case of Rajesh Prasad Vs. State of Bihar and

another, reported in [2022] 3 SCC 471, wherein, the Hon’ble Apex

Court has enunciated the general principles in case of acquittal, more

particularly in paragraph No. 26 the general principles are set out

by the Hon’ble Apex Court based upon various decisions of the

Hon’ble Apex Court. Then in case of Babu Sahebagouda

Rudragoudar Vs. State of Karnataka, reported in AIR 2024 SC

2252 = (2024) 8 SCC 149, the Hon'ble Apex Court has dealt with

the similar issue, more particularly, in paragraph Nos. 37 to 40.

Hence, we are in complete agreement with the findings recorded by

the trial Court.

27.It is also worthwhile to refer to the recent decision of the

Hon’ble Supreme Court in the case of Ramesh vs. State of

Karnataka, reported in [2024] 9 SCC 169 , wherein the Hon’ble

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Supreme Court has held and observed in paras-20 and 21 as under:-

“20. At this stage, it would be relevant to refer to the

general principles culled out by this Court in Chandrappa

and others vs. State of Karnataka , regarding the power of

the appellate Court while dealing with an appeal against a

judgment of acquittal. The principles read thus:

“42. …. (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 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.

21. In Rajendra Prasad v. State of Bihar, a three-Judge

Bench of this Court pointed out that it would be essential

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for the High Court, in an appeal against acquittal, to clearly

indicate firm and weighty grounds from the record for

discarding the reasons of the Trial Court in order to be able

to reach a contrary conclusion of guilt of the accused. It

was further observed that, in an appeal against acquittal, it

would not be legally sufficient for the High Court to take a

contrary view about the credibility of witnesses and it is

absolutely imperative that the High Court convincingly

finds it well-nigh impossible for the Trial Court to reject

their testimony. This was identified as the quintessence of

the jurisprudential aspect of criminal justice. Viewed in this

light, the brusque approach of the High Court in dealing

with the appeal, resulting in the conviction of Appellant

Nos. 1 and 2, reversing the cogent and well-considered

judgment of acquittal by the Trial Court giving them the

benefit of doubt, cannot be sustained.”

28.Considering the entire evidence on record, it clearly appears

that there is no credible evidence to connect the present accused with

the alleged crime and the evidence on record is not so convincing to

prove beyond reasonable doubt that the accused has committed the

alleged crime. Therefore, the accused cannot be convicted on the

evidence on record. Under these circumstances, both the evidence

i.e. dying declaration at Exhibit 41 and statement at Exhibit 44 are

created serious doubt and, therefore the view taken by the trial Court

is in consonance with the settled principle of law.

29.On perusal of the impugned judgment and order, it clearly

transpires that the trial Court has not committed any error of fact and

law in appreciating the evidence on record and in acquitting the

accused from the charges levelled against them. Even on re-

appreciation of the evidence, it clearly transpires that the prosecution

has miserably failed to prove the charge levelled against the accused

beyond reasonable doubt. Therefore, the impugned judgment and

order of the trial Court is sustainable and the present appeal is liable

to be dismissed.

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30.In view of the above, the present appeal is devoid of merits and

it deserves to be dismissed. Resultantly, it is dismissed. The

impugned judgment and order of acquittal passed by the trial Court is

hereby confirmed. Bail bond stands cancelled. Record and

proceedings be sent back to the concerned Trial Court forthwith.

(HEMANT M. PRACHCHHAK,J)

V.R. PANCHAL

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