Holding

The appellate court held that the trial court correctly acquitted the accused as the prosecution failed to establish guilt beyond reasonable doubt and the dying declaration was not reliable.

Summary

The State of Gujarat appealed the acquittal of Shankarbhai Rupsingbhai Dhanuk for murder (IPC s.302) and an offence under the Bombay Police Act, alleging that the prosecution had proved his guilt beyond reasonable doubt. The prosecution relied on eyewitness testimony, a dying declaration, medical reports, and a complaint, asserting that the accused shot the deceased with a bow and arrow out of a property dispute. The trial court found material contradictions in the eyewitness accounts, inconsistencies about the place of occurrence, and doubts about the voluntariness and reliability of the dying declaration, concluding that the evidence did not meet the standard of proof. The appellate court examined whether the dying declaration could be relied upon and whether the prosecution had sufficiently corroborated it. It held that the dying declaration was unreliable and the prosecution evidence was contradictory, thus the trial court’s acquittal was justified. Consequently, the appeal was dismissed and the acquittal upheld.

Issues considered

The prosecution failed to prove the guilt of the accused beyond reasonable doubt.
Whether the dying declaration recorded by the Executive Magistrate is admissible and reliable for conviction.
Whether contradictions in eyewitness testimony and the place of occurrence affect the evidentiary value of the prosecution case.
Whether an appellate court can disturb an acquittal on the basis of alleged errors in appreciation of evidence.

Legislation cited

Code of Criminal Procedure, 1973s. 313, s. 378(1)(3)
Indian Penal Code, 1860s. 302

Subjects

murderdying declarationacquittalburden of proofevidentiary contradictionscriminal appealSection 302 IPCBombay Police Act

Judgment

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

==========================================================

Approved for Reporting Yes No

==========================================================
STATE OF GUJARAT
Versus
SHANKARBHAI RUPSINGBHAI DHANUK
==========================================================
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
==========================================================

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 10
Yashvantrao Shukal

3. 3. Deposition of witness - Kandubhai Mansing 13
Rathava, Executive Magistrate, Chhotaudepur.

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 18
Jamsingbhai

6. 6. Deposition of panch witness – Nankabhai 19
Bhayabhai Rathava

7. 7. Deposition of witness-Nayakabhai Bachubhai 22
Rathava
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, 29
Deputy Mamlatdar, Chhotaudepur
11. 11. Deposition of witness- Investigating Officer - 30
Mayuddin Sirajuddin Shaikh – P.S.I.

DOCUMENTARY EVIDENCE
Sr.No. EXH Description
1. 11 Post-mortem Note
2. 12 Police Yadi for performing P.M.
3. 14 Yadi for recording the dying declaration
4. 15 Dying Declaration of
comlainant/deceased – Ranglabhai Vaghaliyabhai Dhanuk
5. 16 Wireless message by Rangpur Police to
Executive Magistrate for recording the dying declaration.
6. 20 Panchnama of scene of offence
7. 21 Recovery Panchnama of muddamal weapon
used in commission of offence
8. 23 Panchnama of clothes of complainant/deceased
9. 25 Injujry Certifiecate of complainant/deceased
10. 26 Yadi for providing treatment to complainant
11. 28 Inquest Panchnama

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12. 31 Complaint
13. 32 Police Report
14. 34 Police Report
15. 35 Police Report to Executive Magistrate, Vadodara
16. 37 F.S.L. Report
17. 38 Police Report to Execu Magistrate, Vadodara
18. 39 Map 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, the 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

Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: PARMAR GIRISH KANTILAL(HC00954), Principal Pvt Secretary, at High Court of Gujarat on 07/08/2026 17:24:22

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