Gujarat High Court
State Of Gujarat vs Mosin Husenbhai Bhoda on 23 June, 2023
R/CR.A/671/2015 JUDGMENT DATED: 23/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 671 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
MOSIN HUSENBHAI BHODA & 2 other(s)
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Appearance:
MR LB DABHI, APP for the Appellant(s) No. 1
MR CHINTAN S POPAT(5004) for the Opponent(s)/Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 23/06/2023
ORAL JUDGMENT
1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 27.11.2014 passed by the learned 5 th Additional Sessions Judge, Veraval, Junagadh in Sessions Case No.49 of 2012, whereby the respondents accused came to be Page 1 of 21 Downloaded on : Fri Jun 30 20:30:51 IST 2023 R/CR.A/671/2015 JUDGMENT DATED: 23/06/2023 acquitted for the offences under sections 498(A), 306, 114 of Indian Penal Code, the appellant - State has preferred present appeal under section 378 of the Code of Criminal Procedure, 1973 ("the Code" for short).
2. Brief facts of the case leading to filing of the appeal are that as per the complaint, the complainant filed complaint stating that his sister's (Saminaben) marriage was solomnized to respondent no.1 on 26.06.2008, out of said wedlock, the deceased had begotten child aged 3 years. On 22.08.2012, the complainant received information on phone that his sister is burnt and she was admitted in Verval Government Hospital. It is stated in the complaint that respondents were giving constant torture and cruelty to the deceased and hence, deceased committed suicide. Thus, FIR being C.R.No.I - 74 of 2012 at the instance of the complainant came to be registered against the respondents accused for the aforesaid offences.
3. In pursuance of the complaint being C.R.No.I - 74 of 2012 lodged by the complainant with the Veraval City Police Station for the aforesaid offences, the investigating agency started usual investigation and recorded statements of the witnesses, drawn various Panchnamas and obtained FSL report for the purpose of proving the offence. After having found sufficient material against the respondents accused, charge-sheet came to be filed in the Court of learned CJM, Veraval. Since trial of offence alleged against accused is triable exclusively, before Court of Sessions, learned CJM had committed offence to Sessions Court, Veraval as provided in section 209 of the Code.
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4. Upon committal of the case to the Sessions Court, Veraval, learned Sessions Judge framed charge at Exh.25 against the respondents accused for the aforesaid offences. The respondents accused pleaded not guilty and claimed to be tried.
5. In order to bring home charge, the prosecution has examined as many as 11 witnesses and also produced 26 documentary evidence before the learned Sessions Court, more particularly described in para 5 of the impugned judgment and order.
6. On conclusion of evidence on the part of the prosecution, the Sessions Court put various incriminating circumstances appearing in the evidence to the respondents accused so as to obtain explanation/answer as provided u/s 313 of the Code. In the further statement, the respondents accused denied all incriminating circumstances appearing against them as false and further stated that they are innocent and false case has been filed against them.
7. I have heard learned APP for the appellant - State and minutely examined oral and documentary evidence adduced before the learned Sessions Court and heard learned advocate Mr. Chintan Popat for accused / respondents.
8. Learned APP Mr. Dabhi for the appellant - State having pointed out facts of the case and having taken this Court through both oral and documentary evidence recorded before the learned Sessions Court, would submit that the learned Sessions Court has failed to appreciate evidence in true sense and Page 3 of 21 Downloaded on : Fri Jun 30 20:30:51 IST 2023 R/CR.A/671/2015 JUDGMENT DATED: 23/06/2023 perspective. The learned Sessions Court was required to assess the facts that deceased committed suicide within 7 years of marriage span. He would submit that in view of settled proposition of law, learned Sessions Judge being learned Sessions Court was required to make complete and comprehensive appreciation of vital facts of the case and was required to scrutinize the evidence brought on record with due care and caution. He would further submit that perusing the evidence of the complainant and other witnesses, it indicates that they were supporting the case of the prosecution and those witnesses indicate that deceased was subjected to physical and mental cruelty. She was instigated or goaded to commit suicide by pouring inflammable liquid on body.
8.1. Learned APP Mr. Dabhi would further submit that since presumption under section 113(A) of the Evidence Act spells that if deceased commits suicide within 7 years of her marriage span, she had been put to cruelty at the hands of her husband and /or relative of her husband, the Court has to presume having regard to other circumstances of the case that suicide was abetted by her husband or relative of husband.
8.2. Learned APP Mr. Dabhi having gone through impugned judgment would submit that learned Sessions Court has not addressed this issue in its true perspective. He would further submit that learned Sessions Court has not given reasons that why presumption envisaged under section 113(A) of the Evidence Act is not operating in the present case, since deceased committed suicide within 7 years of her marriage span. Thus, impugned judgment suffers from manifestly error. He would Page 4 of 21 Downloaded on : Fri Jun 30 20:30:51 IST 2023 R/CR.A/671/2015 JUDGMENT DATED: 23/06/2023 further submit that though allegations of cruelty and harassment are not by direct evidence, but indirect evidence on record indicates that deceased was harassed at the hands of accused who are husband and in laws of the deceased. He would further submit that prosecution started the process of recording dying declaration, but could not be completed as deceased died immediately after process was started. He would submit that overall circumstances indicate that deceased was subjected to cruelty and harassment. She was abated to commit suicide at the hands of in laws and as such offence under section 498(A) read with section 306 of IPC was made out but the learned Sessions Judge failed to appreciate this aspect correctly. Thus, he submits that in totality of circumstances and on appreciation of evidence, the appeal deserves consideration and requires to be allowed. Having submitted so he urge to allow this appeal and quash the impugned judgment and to convict the accused for the offence under section 498(A) read with section 306 of IPC and to pass appropriate punishment.
9. On the other hand, learned advocate Mr. Chintan Popat for the respondents - original accused would submit that scope of acquittal appeal is very narrow and subtle. He would further submit that even if two views are possible, the view which has been recorded by learned Sessions Court acquitting accused must be given credence as by said view presumption of innocence inherently runs in favour of the accused has been doubled. He would submit that relatives who were examined by the learned Sessions Court did not support the case with regard to allegations of cruelty and harassment. He would further submit that deceased when taken to the hospital, subsequent to Page 5 of 21 Downloaded on : Fri Jun 30 20:30:51 IST 2023 R/CR.A/671/2015 JUDGMENT DATED: 23/06/2023 setting her ablaze by pouring inflammable liquid, before treating Doctor, in her own words she has stated that blast took place in kerosene stove due to accident and she was burnt because of flames arose to such accident. This statement has been recorded by the Doctor. Learned advocate Mr. Popat submitted that this was first statement of the deceased after incident which indicates that she has not committed suicide, but it was accidental death as while she was preparing for meal, kerosene stove was blasted and she received burn injuries. In that circumstances, and having considered other circumstances, whereby none of the witnesses spoke of alleged harassment and cruelty meted out to the deceased, learned Sessions Court has rightly acquitted the accused. He would further submit that acquittal of the accused is recorded by fairly reasoned judgment, it does not require interference and hence, he submits to dismiss this appeal.
10. Regard being to rival submissions of both the sides, there is no gain say that if deceased commit suicide within span of 7 years of marriage, section 113(A) of the Act comes into play. In order to understand scope and applicability, let refer to section 113(A) of the Evidence Act, which reads as under :-
"113A. Presumption as to abetment of suicide by a married woman. --When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court Page 6 of 21 Downloaded on : Fri Jun 30 20:30:51 IST 2023 R/CR.A/671/2015 JUDGMENT DATED: 23/06/2023 may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband."
11. It is cardinal rule that whenever principle of presumption applies in the statue and certain facts said to have been presumed, such presumption is always rebutable. Accused is not required to led evidence beyond reasonable doubt to rebut presumption. The person who is burdened to disprove presumption can discharge presumption by leading evidence in the nature of preponderance of probability.
12. Bare reading of section 113(A) of the Evidence Act indicates that along with rule of presumption, legislature has employed express "having regard to other circumstances of the case". It means that presumption which is slated in section 113(A) is subject to other circumstances of the case, so merely on presumption the Court cannot convict the accused. The expression stated herein above makes presumption as discretionary.
13. With profit, in this regard, we may refer to the observation of Hon'ble Supreme Court in the case of Mangat Ram v/s. State of Haryana [AIR 2014 SC 1782] which reads as under :-
"The mere fact that if a married woman commits suicide within a period of seven years of her marriage, the presumption under Section 113A of the Evidence Act would not automatically apply. The legislative mandate is Page 7 of 21 Downloaded on : Fri Jun 30 20:30:51 IST 2023 R/CR.A/671/2015 JUDGMENT DATED: 23/06/2023 that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband has subjected her to cruelty, the presumption as defined under Section 498-A IPC, may attract, having regard to all other circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband. The term "the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband" would indicate that the presumption is discretionary."
14. The prosecution, to invoke rule of presumption under section 113(A) of Evidence Act is obliged to prove that deceased wife was subjected to cruelty as defined under section 498(A) of IPC. If it does not establish that deceased had been subjected to cruelty at the hands of her husband or relatives, section 113(A) is not applicable. Thus, the prosecution. in order to succeed in invoking presumption under section 113(A) of the Evidence Act first is required to establish cruelty meted to deceased which leads to conviction under section 498(A) of IPC. In absence thereof, there is no reason to invoke rule of presumption under section 113(A) of the Evidence Act independently. In Ramesh kumar v/s. State [(2001) 9 SCC 618], the Hon'ble Supreme Court has held as under :-
"under section 113A, it must be shown that (i) the woman has committed suicide (ii) such suicide has been committed within a period of seven years from the date of her marriage (iii) the husband or his relatives, who are Page 8 of 21 Downloaded on : Fri Jun 30 20:30:51 IST 2023 R/CR.A/671/2015 JUDGMENT DATED: 23/06/2023 charged had subjected her to cruelty. The Court then may presume that such suicide had been abetted by her husband or his relatives. The presumption is not mandatory. It is only permissive. The existence of aforesaid three circumstances shall not, like a formula enable the presumption being drawn. The Court must have regard to all the other circumstances before presumption is drawn. A consideration of all other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. Section 113A suggests the need to reach a cause and effect relationship between the cruelty and the suicide. The presumption is rebuttable one. The evidence of the offence or circumstances available on record may destroy the presumption."
15. Since it is admitted fact that deceased died within 7 years of her marriage span, in background of above proposition of law, the issue arise whether the prosecution has proved that deceased was subjected to cruelty or harassment as defined under section 498(A) of IPC.
16. Threadbare analysis of the evidence led by prosecution has been done by learned Sessions Judge. The prosecution has examined complainant - Ahamedbhai Mugal - Exh.32 who is real brother of the deceased. According to his chief examination, when her sister went to home of her other sister- Rizwana, deceased told Rizawana that she was subjected to cruelty and harassment by the accused. Apart from this statement, he did not speak on oath worth word regarding how cruelty was meted Page 9 of 21 Downloaded on : Fri Jun 30 20:30:51 IST 2023 R/CR.A/671/2015 JUDGMENT DATED: 23/06/2023 out to the deceased and when it was meted out to the deceased and whether this cruelty is meeting with the standard requiring under section 498(A) of IPC. In other words, complainant deposed bare but general word to allege that cruelty was meted to deceased. Moreover, his deposition depicts that he was hear- say witness.
17. Rizwana Patni, real sister of the deceased was examined at Exh.37. Perusing her chief examination, she deposed nothing apart from general wear and tear of marriage life. In cross examination, she has admitted certain contradiction i.e. in the police statement she has not stated that Faridaben (accused) was beating deceased. She has also admitted other contradictions. Such admission by the witness goes to root of the case.
18. Another witness examined was Jubiben - Exh.39. Though this witness stuck to her police statement, it does not indicate nature of cruelty or harassment said to have been extended to deceased as stated in section 498(A) of IPC. Other witnesses also deposed with regard to general wear and tear of marriage life, but none of them have spoken about incident of harassment or cruelty which compelled deceased to commit suicide.
19. Section 498(A) of IPC defines "cruelty" which reads as under :-
"498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for Page 10 of 21 Downloaded on : Fri Jun 30 20:30:51 IST 2023 R/CR.A/671/2015 JUDGMENT DATED: 23/06/2023 a term which may extend to three years and shall also be liable to fine. Explanation.--For the purpose of this section, "cruelty" means--
a) anywilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
20. The expression willful conduct and harassment to coerce her are two important aspects appearing in section 498(A) to decide that element of cruelty and harassment. The sporadic incident of ill-treatment by husband or her relatives does not fall within the expression of cruelty stated in clause (a) and harassment in clause (b) with view to coerce her. The conduct of accused i.e. her husband and /or near relatives must be willful and there is likelihood that such willful conduct will result in committing suicide or would be danger to life, limb or health of the woman.
21. In Indrasingh M. Raol v/s. State of Gujarat - 1999(3) GLR 2536, this Court has defined and explained the expression - cruelty and harassment in context to Sec.498A & 306 of the IPC. Relevant paragraph is para-6 & 7 which read as under :
Page 11 of 21 Downloaded on : Fri Jun 30 20:30:51 IST 2023R/CR.A/671/2015 JUDGMENT DATED: 23/06/2023 "6. The expression "cruelty" means and implies harsh & harmful conduct of certain intensity and persistence. It, therefore, covers the acts causing both physical and mental agony and torture, or tyranny and harm as well as unending accusations and recrimination reflecting bitterness putting the victim thereof to intense miseries & woes strongly stirring up her feeling that life is now not worth living and she should die, being the only option left. The provision of Sec. 498A therefore, envisages intention to drag or force the woman to commit suicide by unabetted, persistent & grave cruelty. In one case, therefore, the facts on record may constitute the cruelty showing required intention and in another case, it may not. The concept of cruelty, therefore, is found different or diversifying from place to place, individual to individual, and also according to social and economical status of the person and several other factors. The Court has, therefore, to becoming more heedful, chary & wary, exert and ascertain the cruelty & required intention on the basis of materials on record and also on the basis of the culture, ordinary sentimentality or sensitivity, capacity to tolerate, temperament, tendency, interse honour, matrimonial relationships, state of health, dissension, interaction, or conflicting ideology, will to dominate, utter disregard of one's own obligation or intractability or habits as well as customs & traditions governing the parties and other governing forces, provided necessary acceptable evidence in this regard is available on record.
7. The word "harassment" is not defined in Sec.
498A. The meaning of the word "harass" which can be found from the dictionary is to subject some one to unbearable, continuous or repeated or persistent unprovoked vexatious attacks, questions, demands, or persecutions, or brutality, or tyranny, or harm, or pain, or Page 12 of 21 Downloaded on : Fri Jun 30 20:30:51 IST 2023 R/CR.A/671/2015 JUDGMENT DATED: 23/06/2023 affliction, or other unpleasantness, or grave annoyance, or troubles. In short what can be said is that Sec. 498A will not come into play in every case of harassment and/or cruelty.
Reasonable nexus between cruelty and suicide must be established. It should, therefore, be shown that the incessant harassment or cruelty was with a view to force the wife to end her life or fulfil illegal demands of her husband or in- laws, and was not matrimonial cruelty, namely usual wear and tear of matrimonial life. It should hardly be stated that the prosecution has to establish the charge beyond reasonable doubt. No doubt arithmetical accuracy is not expected from the prosecution, but it has to adduce such evidence which would be credible leaving no room to any reasonable doubt; and pointing to the guilt of the accused."
22. In Manju Ram vs. State, (2009) 13 SCC 330, Hon'ble Supreme Court has explained the meaning of 'Cruelty' in following terms : -
"Cruelty" for the purpose of section 498A, IPC is to be established in the context of sec.498A, IPC as it may be different from other statutory provisions. It is to be determined/inferred by considering the conduct of the man, weighing the gravity of seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide, etc. it is to be established that the woman has been subjected to cruelty continuously/persistently or atleast in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as "cruelty" to attract the provisions of sec.498A, IPC. Causing mental torture to the Page 13 of 21 Downloaded on : Fri Jun 30 20:30:51 IST 2023 R/CR.A/671/2015 JUDGMENT DATED: 23/06/2023 extent that it becomes unbearable may be termed as cruelty."
23. In earlier decision in the case of V.Bhagat vs. D.Bhagat, AIR 1994 SC 710, the Hon'ble Supreme Court in regard to word 'cruelty' has observed following : -
"The context and the setup in which the word "cruelty" has been used in the section, seems...., that intention is not a necessary element in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty"
24. The cruelty therefore, has to be understood in its ordinary sense of the matrimonial terms, yet general wear and tear of matrimonial life of vague allegations having no mentioning of specific incident of demand of dowry by the accused or hostile attitude of husband and/or his relatives cannot be termed as cruelty. Differences arising, momentarily between husband and wife also cannot be construed as cruelty or harassment. In order to establish and prove cruelty as stated in section 498(A) of the IPC, it must be in nature that it is arising from willful conduct and it is intended to harm, harass or hurt the victim.
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25. In the background of above law, if we re-examine the evidence on record, what appears that no specific incident of cruelty or willful conduct of the accused are narrated by any of the witnesses. Even such ingredients are missing in FIR. There are only general allegations. She was beaten, but when, why and for what circumstances or for what demand, nothing is coming on record by way of evidence. Also at no point of time, dispute between husband and wife arose or atleast surfaced on record. Thus neither direct nor inferential evidence regarding "cruelty" appears or proved by the prosecution.
26. Insofar as allegations of offence under section 306 of IPC is concerned, it is necessary to read section 306 with section 107 of IPC. Section 306 of IPC reads as under :-
Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
26.1. What is "abetement of things" has been described in section 107 of IPC, which reads as under : -
A person abets the doing of a thing, who-- First.--Instigates any person to do that thing; or Secondly.--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing.Page 15 of 21 Downloaded on : Fri Jun 30 20:30:51 IST 2023
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27. Plain reading of section 306 with section 107 of IPC indicates that there must be some nexus between suicide of the victim and alleged offensive acts of the accused. In other words, prosecution is required to prove offensive acts of accused, which drive deceased to commit suicide. In addition thereto, there should be proximity of offensive acts, which led deceased to commit suicide. In the case of Wazir Chand v/s. State [AIR 1989 SC 378], the Hon'ble Supreme Court has held as under :-
"Reading sections 306 and 107 together, it is clear that if any person instigates any other person to commit suicide and as a result of such instigation the other person commits suicide, the person causing the instigation is liable to be punished under section 306 for abetting the commission of suicide. A plain reading of the provisions shows that before a person can be convicted of abetting the suicide of any other person, it must be established that such other person committed suicide."
28. When offence of 498(A) is added with offence of section 306 of IPC, prosecution is obliged to prove that cruelty was meted out to the deceased being result of willful conduct of accused and same has driven deceased to commit suicide. Prosecution is also burdened to prove proximity and/or nexus between cruelty and act of suicide.
29. The stray domestic quarrels, perfunctory abuses by husband or in laws are common in Indian society. Crude and uncultered behaviour by the husband towards his wife being mundane would not form and constitute abetement unless these Page 16 of 21 Downloaded on : Fri Jun 30 20:30:51 IST 2023 R/CR.A/671/2015 JUDGMENT DATED: 23/06/2023 acts or conduct signally or cumulatively are found to be of such formidable and compelling nature as may lead to commission of suicide. Abetment is mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, accused cannot be convicted under section 306 of IPC.
30. In Ramesh Kumar (supra), the Hon'ble Supreme Court observed regarding instigation as under :-
"Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of "instigation", though it is not necessary that actual words must be used to that effect or what constitutes "instigation" must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an "instigation" may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation."
30.1. Close reading of evidence on record does not indicate any instigation on the part of the accused which driven the deceased to commit suicide. There is no active role played by the accused which is proved by the prosecution which may establish Page 17 of 21 Downloaded on : Fri Jun 30 20:30:51 IST 2023 R/CR.A/671/2015 JUDGMENT DATED: 23/06/2023 instigation or abetment for committing suicide.
31. It is important to note that deceased was burnt and according to evidence of prosecution, she was not able to speak properly. Deceased had given her first statement post incident which is recorded by treating Doctor in MLC indicates that she has not levelled any kind of allegations against the accused which withstand to demonstrate active role of accused aiding in committing suicide. She in no uncertain terms stated that kerosene stove was blasted, due to which she was inflamed and because of such incident, she was burnt. This is expert evidence produced by the prosecution itself.
32. Re-appreciation of evidence as above, in background of facts of the case indicates that learned Sessions Court has rightly but flawlessly appreciated evidence. Learned Sessions Court has also applied provision of law correctly. In overall, it is found that learned Sessions Court has not committed error to reach to the conclusion of acquitting the accused.
33. Scope of interference in acquittal appeal is well settled. In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280, Supreme Court has held as under:
"The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any Page 18 of 21 Downloaded on : Fri Jun 30 20:30:51 IST 2023 R/CR.A/671/2015 JUDGMENT DATED: 23/06/2023 doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."
34. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned Special Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned Special Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.
35. It can be noticed that cardinal principles of criminal jurisprudence behold that in an acquittal appeal, even if two view is possible, the view taken by the learned trial Court cannot be substituted by reversing the acquittal into the conviction unless finding of the learned trial Court found to be perverse, or could to have been said contrary to the material on record or demonstrably wrong or unsustainable and manifestly erroneous [See: Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225].
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36. Before parting with this judgment, I may refer to recent decision of the Hon'ble Supreme Court in the case of Fedrick Cutinha v/s. State of Karnataka rendered on 18.04.2023 in Criminal Appeal No.2251 of 2010, whereby, the Hon'ble Supreme Court has recapitulated the power of Appellate Court in interfering with the acquittal appeal. Para 13 of the said decision, which is relevant, reads as under :-
"13. There is no room to doubt the powers of the appellate court and that it has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. However, the appellate court has to bear in mind that in case of acquittal there is double presumption of innocence in favour of the accused. First, the presumption of innocence is available to all accused under the criminal jurisprudence as every person is presumed to be innocent unless proved to be guilty before the competent court of law. Secondly, the accused having secured the acquittal, the presumption of their innocence gets further reinforced and strengthened. Therefore, the appellate court ought not to lightly interfere with the order of acquittal recorded by the trial court unless there is gross perversity in the 10 appreciation of the evidence and even if two views are possible, it should follow the view taken by the trial court rather than choosing the second possible version."
37. In the instant case, learned APP could not able to point out that how the finding recorded by the learned Sessions Court is patently illegal, perverse or contrary to the material on record or Page 20 of 21 Downloaded on : Fri Jun 30 20:30:51 IST 2023 R/CR.A/671/2015 JUDGMENT DATED: 23/06/2023 against the settled principles of law or his palpably wrong or manifestly erroneous.
38. The reasons stated herein above indicate that no case is made out by the appellant State warranting interference with the impugned judgment and order of acquittal.
39. Resultantly, present appeal fails and same deserves to be dismissed and is accordingly dismissed.
40. Bail bond, if any, taken during the pendency of appeal, is cancelled.
(J. C. DOSHI,J) SATISH Page 21 of 21 Downloaded on : Fri Jun 30 20:30:51 IST 2023