R/CR.A/823/2000 JUDGMENT DATED: 07/08/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL NO. 823 of 2000

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

SHANKARBHAI RUPSINGBHAI DHANUK

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Appearance:

Mr. K.B.ANTANI, APP for the Appellant(s) No. 1

NON BAILABLE WARRANT SERVED for the

Opponent(s)/Respondent(s) No. 1

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 : 07/08/2026

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 (1)(3) of the Code

of Criminal Procedure, 1973 ( hereinafter be referred to as

Cr.P.C. ) challenging the Judgment dated 23.06.2000 passed

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by the learned Additional Sessions Judge, Vadodara, Camp at

Chhotaudepur ( hereinafter be referred to as the Ld. Trial

Court / Ld.ASJ) in Sessions Case No.5 of 1999, whereby the

Respondent herein was ordered to be acquitted of the charges

for the offences punishable under Sections 302 of the Indian

Penal Code,1860 (hereinafter be referred to as “IPC”) and

Section 135 of the Bombay Police Act.

2.The facts and circumstances giving rise to the filing of

the present appeal are as follows: The complainant/deceased,

Rangalabhai Vaghaliyabhai Dhanuk was residing at

Harpalpura, Taluka: Chhota Udepur. Three Mahua ( Mahudo)

trees belonging to the complainant/deceased were situated on

the land of the accused-Shankarbhai Rupsingbhai Dhanuk.

However, the accused sold one of the said three trees without

informing the complainant/deceased-Rangalabhai. In this

regard, the complainant/deceased reprimanded the accused.

Therefore, on 19.09.1998, at about 19:00 hours, harbouring a

grudge against the complainant/deceased and with an

intention to kill him, the accused concealed himself in the field

of Natiya Chakudiya with a bow and arrow ( Tir-Kamtha).

While the complainant/deceased was returning home after

attending the funeral of the daughter of Hurjibhai, the

accused shot an arrow from the bow and the said arrow struck

the left side of the complainant’s/deceased’s chest. Due to the

injuries sustained in the said incident, the

complainant/deceased succumbed to the injuries during the

course of treatment.

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3.Accordingly, FIR being I.C.R.No. 66 of 1998 was lodged

at Rangpur Police Station, District–Vadodara and investigation

was carried out and ultimately, charge-sheet came to be filed

against the accused under Sections 302 of the IPC and

Section 135 of the Bombay Police Act 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,

Vadodara, which came to be numbered as Sessions Case

No.5/1999.

4.On 23.06.2000, the learned Trial Court framed the

charges at Exh. 2 under Sections 302 of the IPC & Section

135 of the Bombay Police Act . Since, the accused did not

plead guilty and claimed to be tried, he was tried for the said

offences.

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.NO

.

WITNESS Exh.

1. 1.Deposition of Kaliben Ranglabhai 7

2. 2.Deposition of witness – Dr.Vaishaliben

Yashvantrao Shukal

10

3. 3.Deposition of witness - Kandubhai Mansing

Rathava, Executive Magistrate, Chhotaudepur.

13

4. 4.Deposition of witness –Mojaliben Ranglabhai – 17

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daughter of complainant/deceased Ranglabhai

5. 5.Deposition of witness – Eye witness - Mohanbhai

Jamsingbhai

18

6. 6.Deposition of panch witness – Nankabhai

Bhayabhai Rathava

19

7. 7.Deposition of witness-Nayakabhai Bachubhai

Rathava

22

8. 8.Deposition of witness- Dr.Babulal Kalusinh Patidar 24

9. 9.Deposition of witness- Balvantsinh Dilipsinh Gohil 27

10. 10.Deposition of witness- Udesinh Ravjibhai Rathava,

Deputy Mamlatdar, Chhotaudepur

29

11. 11.Deposition of witness- Investigating Officer -

Mayuddin Sirajuddin Shaikh – P.S.I.

30

DOCUMENTARY EVIDENCE

Sr.No.EXH Description

1. 11Post-mortem Note

2. 12Police Yadi for performing P.M.

3. 14Yadi for recording the dying declaration

4. 15Dying Declaration of

comlainant/deceased – Ranglabhai Vaghaliyabhai Dhanuk

5. 16Wireless message by Rangpur Police to

Executive Magistrate for recording the dying declaration.

6. 20Panchnama of scene of offence

7. 21Recovery Panchnama of muddamal weapon

used in commission of offence

8. 23Panchnama of clothes of complainant/deceased

9. 25Injujry Certifiecate of complainant/deceased

10. 26Yadi for providing treatment to complainant

11. 28Inquest Panchnama

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12. 31Complaint

13. 32Police Report

14. 34Police Report

15. 35Police Report to Executive Magistrate, Vadodara

16. 37F.S.L. Report

17. 38Police Report to Execu Magistrate, Vadodara

18. 39Map of Scene of offence

6.After recording all the evidence, statement of the

accused under Section 313 of Cr.P.C. were recorded and all

the 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. ASJ acquitted the accused of

all the charges levelled against him by the Judgment dated

23.06.2000.

7.Being aggrieved by and dissatisfied with the judgment

dated 23.06.2000 passed by the learned Additional Sessions

Judge, Vadodara, Camp at Chhotaudepur, the appellant-State

has preferred the present Criminal Appeal.

8.We have heard learned Additional Public Prosecutor for

the appellant–State.

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9.Mr. K.B.Antani, learned Additional Public Prosecutor for

the appellant–State vehemently submitted that the the learned

ASJ ought to have convicted the respondent–accused on the

basis of the cogent oral as well as documentary evidence

available on record. It is submitted that the complaint lodged

by the deceased–Ranglabhai at Exh.31 coupled with the

testimonies of the eye-witnesses viz. Kaliben Ranglabhai,

Mojaliben Ranglabhai and Mohanbhai Jamsingbhai clearly

established the involvement of the respondent–accused in the

commission of the offence. The said witnesses deposed that

there existed prior enmity between the deceased and the

respondent–accused regarding a tree situated in the field of

the respondent–accused, which had been cut by him and for

which the deceased had reprimanded the respondent–

accused. It is submitted that Dr. Babulal Kalusinh Patidar,

who initially treated the deceased–Ranglabhai categorically

deposed that the deceased had sustained injuries caused by

an arrow. Reliance was also placed upon the testimony of Dr.

Vaishaliben Yashvantrao Shukal, who proved the post-mortem

report at Exh.11 and opined that the death of the deceased

was a direct consequence of the injuries sustained in the

incident.

10.It is submitted that the deceased had also made a dying

declaration before Kandubhai Mansing Rathava, Executive

Magistrate, Chhota Udepur, whose deposition was recorded at

Exh.13. The said witness duly proved the dying declaration at

Exh.15. According to the prosecution, both the complaint at

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Exh.31 and the dying declaration at Exh.15 unequivocally

established that the respondent–accused had inflicted the

fatal injury upon the deceased by means of a bow and arrow.

He, therefore, submitted that the medical evidence including

the testimony of the doctor, who provided first-aid and the

doctor who conducted the post-mortem examination

conclusively established that the deceased–Ranglabhai

succumbed to the injuries caused by the arrow shot by the

respondent–accused. In such circumstances, t he learned ASJ

miserably failed to appreciate the oral as well as documentary

evidence led by the prosecution. Therefore, the impugned

judgment is liable to be set aside and the respondent-accused

may be convicted for the charges levelled against him.

11.No one appeared on behalf of the respondent–accused.

Pursuant to the non-bailable warrant issued by this Court, the

respondent–accused was produced through the prosecuting

agency. Upon being heard, the respondent–accused submitted

that the appeal preferred by the State is devoid of merits and

deserves to be dismissed and the judgment passed by the

learned ASJ does not warrant any interference.

12.Having considered the submissions made by learned APP

appearing for the appellant-State and the respondent-accused

and also considering the record, it is noted that the present

appeal has been preferred by the State challenging the

impugned judgment, whereby the learned ASJ acquitted the

respondent–accused of the charges levelled against him. In

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order to appreciate the rival submissions and examine the

correctness of the impugned judgment, it would be apposite to

consider the oral as well as documentary evidence adduced by

the prosecution to establish the guilt of the respondent–

accused. The record reveals that, with a view to bringing

home the guilt of the respondent–accused, the prosecution

examined as many as 11 witnesses and produced 18

documentary exhibits in support of its case.

13.The prosecution examined Kaliben Ranglabhai as P.W.1

at Exh.7. She is the widow of the deceased–Ranglabhai. In her

deposition, she stated that at the time of the incident, she was

at her residence. According to her, while her husband was

returning home after attending the funeral ceremony of a girl,

the respondent–accused inflicted an injury upon him by means

of a bow and arrow. She further deposed that when she was

proceeding ahead of her husband, the respondent–accused

shot an arrow at him, as a result of which he fell near a

Mahuda (Mahuva) tree. Thereafter, Retlabhai and Dhuliyabhai

arrived at the scene of offence and took her husband to the

hospital at Chhota-Udepur for medical treatment. She further

stated that her husband was subsequently referred to Baroda

for further treatment. However, upon reaching the hospital at

Baroda, her husband succumbed to the injuries sustained by

him, and thereafter the dead body was handed over to her. In

her cross-examination, she stated that after sustaining the

injury, her husband had become unconscious. She further

deposed that she first brought her husband home and

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thereafter took him to Rangpur Police Station. According to

her, the police officials at Rangpur Police Station examined

her husband and found him to be alive, whereupon his

complaint was recorded. She also admitted that the complaint

was lodged in the presence of herself, Retlabhai and

Dhuliyabhai. They narrated the incident to the police, who

recorded the complaint, and thereafter, the thumb impression

of her husband was obtained on the complaint.

14.The prosecution also examined Dr.Vaishaliben

Yashvantrao Shukal as P.W.2 at Exh.10. She deposed that she

had conducted the post-mortem examination of the deceased–

Ranglabhai and proved the post-mortem report at Exh.11. In

her testimony, she stated that the deceased had died on

account of haemorrhage and injuries sustained to the vital

organs of the body. The medical evidence adduced through

the said witness thus established the cause of death of the

deceased is homicidal. The prosecution further examined

Kandubhai Mansing Rathava, Executive Magistrate as P.W.3

at Exh.13. He deposed that upon receipt of the Yadi at Exh.14,

he proceeded to the hospital at Chhota-Udepur where the

deceased–Ranglabhai was undergoing treatment. According to

him, he commenced recording the dying declaration at about

4:11 a.m. and completed the same at about 4:30 a.m. He

proved the dying declaration on record at Exh.15. As per the

contents of the dying declaration, the deceased–Ranglabhai

stated that the respondent–accused had inflicted the injury by

the shot of bow-and-arrow at his home. However, in his cross-

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examination, the witness admitted that he had not obtained

any endorsement from the attending doctor certifying the

mental fitness and consciousness of the deceased at the time

of recording the dying declaration.

15.The prosecution also examined Mojaliben Ranglabhai as

P.W.4 at Exh.17. In her examination-in-chief, she deposed that

at the time of the incident, her father was returning home and

that she was accompanying with him. According to her, while

they were passing through the paddy field, the respondent–

accused inflicted an injury upon her father by shooting an

arrow from a bow. However, in her cross-examination, she

admitted that at the time of the incident, she was playing at

her residence and upon hearing shouts from the vicinity,

rushed to the place of occurrence. She further stated that her

father was brought home by Mohan Jamsingbhai. Thus, her

testimony in cross-examination materially contradicted her

version given in the examination-in-chief regarding her

presence at the scene of offence at the time of the incident.

16.The prosecution also examined Mohan Jamsingbhai as

P.W.5 at Exh.18. In his examination-in-chief, he deposed that

on the day of the incident, the deceased–Ranglabhai was

returning home after attending a funeral ceremony. According

to the witness, he was walking ahead of the deceased when

the respondent–accused inflicted an injury upon Ranglabhai

by shooting an arrow from a bow. He further stated that he

noticed the respondent–accused approaching from behind

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carrying a bow and arrow. Upon learning that the deceased

had sustained injuries, he immediately rushed to the place of

occurrence, and thereafter, brought the injured Ranglabhai to

his residence. He also deposed that the wife of the deceased

was present at that time. According to the witness, he

subsequently took Ranglabhai to the hospital at Chhota-

Udepur for treatment, from where he was referred to Baroda

for further medical treatment. However, during the course of

treatment at Baroda Hospital, Ranglabhai succumbed to the

injuries sustained by him. In his cross-examination, the

witness admitted that he had not stated before the

Investigating Officer that the deceased–Ranglabhai was

walking ahead of him at the relevant time or that he had seen

the respondent–accused coming from behind carrying a bow

and arrow.

17.The prosecution also examined Nankabhai Bhayabhai

Rathava as P.W.6 at Exh.19. He was examined as a panch

witness to the recovery panchnama as well as the panchnama

of the scene of offence. However, the witness did not support

the prosecution case and failed to corroborate the contents of

the panchnamas at Exhs.20 and 21. He was accordingly

declared hostile. In view of the fact that the witness has not

supported the prosecution version with regard to the said

panchnamas, no further detailed reference to his testimony is

considered necessary.

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18.The prosecution examined Nayakabhai Bachubhai

Rathava as P.W.7 at Exh.22. He was examined as a panch

witness to the seizure panchnama pertaining to the clothes of

the deceased. In his examination-in-chief, he supported the

execution of the said panchnama. However, in his cross-

examination, the witness admitted that whenever the police

required a panch witness, he used to act as such, as he was

serving in the Police Department. He further admitted that he

had acted as a panch witness in about 20 to 24 panchnamas.

Thus, the witness appears to be a regular or stock panch

witness frequently associated with police proceedings, a

circumstance which is required to be borne in mind while

appreciating the evidentiary value of his testimony.

19.The prosecution also examined Balvantsinh Dilipsinh

Gohil as P.W.9 at Exh.27. He was examined as a panch

witness to the inquest panchnama. However, the said witness

did not support the case of the prosecution and was declared

hostile. Therefore, in view of the fact that he has not

supported the contents of the inquest panchnama, no further

reference to his testimony is required.

20.The prosecution also examined Dr. Babulal Kalusinh

Patidar as P.W.8 at Exh.24. He deposed that he had provided

medical treatment to the deceased–Ranglabhai at Chhota-

Udepur Hospital. He further stated that, upon examination, he

found that the deceased had sustained injuries caused by a

bow and arrow. Thus, the said witness proved the nature of

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injuries sustained by the deceased. In his cross-examination,

the witness admitted that the deceased–Ranglabhai had not

disclosed the name of the person who had inflicted the

injuries upon him.

21.The prosecution also examined Udesinh Ravjibhai

Rathava, Deputy Mamlatdar, Chhota Udepur, as P.W.10 at

Exh.29. He deposed that he had prepared the map of the

place of occurrence. His testimony was limited to proving the

preparation of the said map.

22.The prosecution also examined the Investigating Officer,

Mayuddin Sirajuddin Shaikh, P.S.I., as P.W.11 at Exh.30. He

deposed that he had carried out the investigation of the

offence and upon completion of the investigation, finding

sufficient material against the respondent–accused, he filed

the charge-sheet before the competent Court.

23.Now, in light of the oral as well as documentary

evidence brought on record, the question that arises for

consideration is as to whether the acquittal recorded by the

learned ASJ in favour of the respondent–accused is

sustainable or not. In order to examine the correctness of the

impugned judgment and order, the entire evidence led by the

prosecution requires careful and minute scrutiny. P.W.1,

Kaliben Ranglabhai, in her examination-in-chief, stated that at

the time of occurrence of the incident, she was at her

residence. However, she further deposed that at the relevant

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time, her deceased husband was proceeding ahead of her and

that she had witnessed the incident. If, according to her own

version, she was present at her house at the time of the

occurrence, it creates a serious doubt as to how she could

have witnessed the incident. Further, P.W.1 deposed that

after the incident, she along with Retlabhai and Dhuliyabhai,

brought her husband to their house. However, P.W.4–

Mojaliben Ranglabhai, daughter of the deceased, deposed that

after the incident, her father was brought home by Mohanbhai

Jamsingbhai (P.W.5). Thus, there appears to be a material

contradiction in the depositions of P.W.1, P.W.4 and P.W.5

with regard to the manner in which the deceased was brought

home after sustaining injuries. It is also required to be noted

that though P.W.1, P.W.4 and P.W.5 have projected

themselves to be present at or near the place of occurrence,

their own statements during cross-examination create serious

doubt regarding their presence at the scene of offence. P.W.1

admitted that she was at home at the time of the incident.

P.W.4–Mojaliben Ranglabhai, daughter of the deceased,

admitted that she was playing at her residence and, upon

hearing the shouts, she reached the place of incident.

Similarly, P.W.5 admitted that he reached the place of

occurrence only after the incident had taken place. Therefore,

their presence at the time of the actual occurrence becomes

doubtful. The prosecution has also relied upon the dying

declaration recorded by P.W.3–Kandubhai Mansing Rathava.

As per the said dying declaration at Exh.15, the deceased–

Ranglabhai stated that the respondent–accused had inflicted

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the injury upon him by shooting an arrow from a bow at his

house. Thus, according to the deceased himself, the incident

had occurred at his residence. However, P.W.1, P.W.4 and

P.W.5 have deposed that the incident took place in the paddy

field of Natiya Chakudiya. Further, P.W.10, who prepared the

map of the place of occurrence, has shown a different place

as the scene of offence and the said place does not correspond

with the place stated by the eye-witnesses. The Investigating

Officer–P.W.11 has also supported the version of P.W.10

regarding the place of occurrence. Therefore, there are

material inconsistencies regarding the exact place where the

incident had taken place. P.W.1 deposed that the incident

occurred near a Mahuda (Mahuva) tree, whereas the map

prepared by P.W.10 indicates a different place of occurrence.

Moreover, the Investigating Officer collected the blood

samples and controlled mud from a different location,

whereas the dying declaration records the place of incident as

the house of the deceased. Thus, considering the aforesaid

contradictions, inconsistencies and discrepancies in the

evidence of the prosecution witnesses regarding the presence

of the alleged eye-witnesses and the actual place of

occurrence, the prosecution has failed to establish beyond

reasonable doubt the exact place where the incident took

place.

24.So far as the complaint at Exh.31 is concerned, P.W.11–

Investigating Officer deposed that he had recorded the

complaint on the basis of the statement made by the

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deceased–Ranglabhai before P.W.1. However, P.W.1, widow of

the deceased–Ranglabhai deposed that she, Retlabhai and

Dhuliyabhai narrated the incident to P.W.11, who noted down

the complaint, and thereafter, the thumb impression of the

deceased was obtained on the said complaint. The aforesaid

discrepancy regarding the manner in which the complaint

came to be recorded itself creates a doubt regarding the

prosecution version. It is true that P.W.2–Dr. Vaishaliben

Yashvantrao Shukal, who conducted the post-mortem

examination, proved that the injuries sustained by the

deceased were ante-mortem in nature and that the deceased–

Ranglabhai died due to the said injuries. However, the

prosecution has failed to establish beyond reasonable doubt

that the said injuries were caused by the respondent–accused.

The learned Additional Sessions Judge has rightly disbelieved

the version of the prosecution witnesses in view of the

material contradictions appearing on record with regard to

the place of occurrence, the presence of P.W.1, P.W.4 and

P.W.5 at the scene of offence, the person who brought the

injured deceased to his home, and the person who took him to

the hospital. The discrepancy regarding the place of

occurrence has also been brought on record through the

deposition of the Investigating Officer.

25.It has been vehemently argued by the learned APP that

the learned ASJ ought to have relied upon the dying

declaration recorded by P.W.3–Executive Magistrate. So far as

the said contention is concerned, P.W.3, who recorded the

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dying declaration, has proved the same at Exh.15. On perusal

of dying declaration (Exh.15), it appears that the deceased–

Ranglabhai stated that the injury was inflicted by the

respondent–accused by means of an arrow shot at his house.

However, P.W.1, P.W.4 and P.W.5 have deposed before the

Court that the incident had occurred in the field of Natiya

Chakudiya. Thus, there is a material contradiction regarding

the place of occurrence. Further, the panchnama of the scene

of offence as well as the map of the place of incident indicate

a different location, which creates a serious doubt regarding

the actual place of occurrence. Moreover, P.W.3–Executive

Magistrate, in his cross-examination, has admitted that he had

not obtained any endorsement from the attending doctor

regarding the mental fitness and consciousness of the

deceased prior to recording the dying declaration. It has also

come on record through the deposition of P.W.1, in her cross-

examination, that after sustaining the injury, deceased–

Ranglabhai had become unconscious. In view of the said

evidence and the attending circumstances, a doubt arises as

to whether the deceased was in a fit state of mind and

conscious condition at the time of making the dying

declaration. Furthermore, there are material discrepancies in

the evidence of the prosecution witnesses regarding the place

of occurrence. The alleged recovery of the bow and arrow has

also not been satisfactorily proved by the prosecution.

Therefore, considering the cumulative effect of all the

aforesaid circumstances, the dying declaration at Exh.15 does

not inspire confidence and cannot be relied upon beyond

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reasonable doubt. It is a settled proposition of law that a

conviction can be based solely on the basis of a dying

declaration provided that the same is proved to be voluntary,

truthful and inspires confidence of the Court. However, when

the dying declaration suffers from material inconsistencies

and doubts arise regarding the mental fitness of the declarant,

the same cannot be made the basis for recording conviction.

26.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

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

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(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

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).”

27.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: -

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(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 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?”

28.Now, adverting to the facts of the case on hand, the

dying declaration is not beyond shadow of doubt. Considering

the dying declaration in all attending circumstances, it does

not inspire the faith of the Court. Thus, applying the principle

of law enunciated by the Hon’ble Apex Court in the case of

Paniben (supra) and Irfan @ Naka (supra), the learned ASJ

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has not committed any error in disbelieving the dying

declaration.

29.Furthermore, the prosecution has failed to prove on

record the notification issued by the Collector under the

provisions of the Bombay Police Act. In view of the aforesaid

contradictions, omissions and deficiencies in the prosecution

evidence, this Court is of the opinion that the learned ASJ has

rightly extended the benefit of doubt to the respondent–

accused and acquitted him of all the charges levelled against

him.

30.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.

31.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

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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

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.

32.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

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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 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.”

33.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

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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.

34.In these facts and circumstances, we are of the

considered opinion that the learned Trial Judge committed no

error in passing the impugned judgment and order. Hence,

the present appeal deserves to be dismissed.

35.In the result, the appeal fails and is dismissed. The

judgment and order of the Trial Court dated 23.06.2000

stands confirmed. If the respondent-accused has been taken

into custody in execution of non-bailable warrant, he be

released forthwith. 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

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