Gujarat High Court
State Of Gujarat vs Samuben Wd/O Bhoghabhai on 6 January, 2023
Author: S.H.Vora
Bench: S.H.Vora, Rajendra M. Sareen
R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 567 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE S.H.VORA
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
SAMUBEN WD/O BHOGHABHAI & 2 other(s)
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Appearance:
MR HK PATEL, ADDL PUBLIC PROSECUTOR for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1,3
BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s) No. 2
MR UMANG H OZA(2440) for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE S.H.VORA
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 06/01/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN) Page 1 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023 R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023
1. This appeal is filed by the appellant - State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 07.02.1995, passed in Sessions Case No. 118 of 1993 by the learned Additional City Sessions Judge, Court No.16, Ahmedabad, recording the acquittal.
2. It is reported that respondent Nos. 1 and 3 have already expired and therefore, appeal is abated against respondent Nos. 1 and 3. Therefore, appeal is heard only qua respondent No.2.
3. Facts in brief are that marriage of deceased Madhuben was solemnized with Jethabhai - respondent No.3 herein before one year of the incident. It was Madhuben's second marriage. Before this marriage, Madhuben was married in Surendranagar but since her first husband was mentally unfit, she has taken divorce from him. Her husband - Jethabhai has also married previously. However, his wife has expired and therefore, he married to Madhuben. Jethabhai was having three children from his first marriage. After their marriage, Jethabhai and Madhuben were residing with these three children and mother of Jethabhai. Jethabhai was having two brothers, one was residing in the same house and other at some nearby place. As per the complaint, Respondent No.3 was not allowing the deceased - complainant to visit her Page 2 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023 R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 parental house and tortured her physically and mentally. At that time, mother in law - respondent No.1 herein and brother in law - respondent No.2 herein were instigating the respondent No.3 against the deceased Madhuben. Moreover, deceased was pregnant, but respondents - accused were telling her that she has an extramarital affair with her sister's husband and the child is not of her husband. As per the complaint, with this allegation, respondents - accused were torturing the deceased mentally and physically. On 31.01.1993 at about 8:00 o'clock, when she was at her house, respondents
- accused were came there and abused her and then respondent No.1 has pored kerosene over the deceased, while respondent Nos. 2 and 3 have caught hold of the deceased and set her ablaze. When deceased was burning, they left the place. Thereafter, deceased has shouted for help, hearing this, her sister in law and other neighbours gathered and extinguished the fire. They took the deceased to the V. S. Hospital, Ahmadabad. There, she died at 1:00 a.m. on 01.02.1993. The complaint was registered against the respondent No.1 for the offence punishable under Sections 302 and 498A of the Indian Penal Code, 1860 (herein after referred to as "the IPC") and Sections, 302, 498A read with Sections 34 and 114 of the IPC agaisnt respondent Nos. 2 and 3.
Page 3 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 3.1 Upon such FIR being filed, investigation started and the Investigating Officer recorded statements of many witnesses and produced certain documentary evidence and after completion of the investigation, Charge-sheet was filed against the accused for the offence in question. The case was committed to the Sessions Court and the learned trial Judge framed the Charge. Since the accused did not plead guilty, trial was proceeded against the accused and by impugned judgment and order dated 07.02.1995, the learned trial Judge acquitted the accused. Being aggrieved by the same, the State has preferred the present appeal.
4. Heard, learned APP Mr. H. K. Patel for the appellant - State and learned advocate Mr. Umang Oza for respondent No.3 - accused. Perused the Record and Proceedings of the case.
5. The learned APP has mainly contended that the learned trial Judge has erred in holding that the prosecution has failed to prove its case beyond reasonable doubt. He has submitted that the impugned judgment of the trial Court is based on presumptions and inferences and thereby, it is against the facts and the evidence on record. The learned APP further submitted that the learned trial Judge has failed to appreciate the evidence on record in its true and proper perspective and Page 4 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023 R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 thereby, has erred in recording the acquittal of the respondents
- accused.
5.1 The learned APP further contended that the learned trial Judge has erred in holding that the prosecution has failed to prove the case beyond reasonable doubt, since the complaint is registered by the deceased herself and in her complaint as well as in her dying declaration before the Executive Magistrate, she has stated that respondents - accused have poured kerosene upon her and set her ablaze and relying upon the evidence of Champaben and Amrutben, who are sister in laws of the deceased, who have stated that on inquiring by them to the deceased, how all these happened, the deceased has told them that she burned on her own. Moreover, learned trial Judge believed the version of respondent Nos. 1 and 2, who have stated that they were out of Ahmedabad on the day of incident and case of respondent No.3 is that he was on duty and they were falsely implicated in the offence.
5.2 The learned APP for the appellant - State submitted that despite sufficient material was there on record in support of the case of the prosecution and though the prosecution successfully proved its case beyond reasonable doubt, the learned trial Judge has committed error in discarding the evidence on record and not believing the same.
Page 5 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 5.3 It is submitted that the learned trial Judge has ignored the settled legal position of trial and thereby, has erred in coming to such a conclusion.
5.4 The learned APP, taking this Court through the oral as well as the documentary evidence on record, submitted that though the prosecution has proved the case against the accused beyond reasonable doubt, the learned trial Judge has not properly appreciated the evidence on record and thereby, has committed an error in recording acquittal. It is submitted that though all the ingredients of the offence alleged had been proved beyond reasonable doubt, the learned trial Judge did not believe the same and therefore, the impugned judgment and order suffers from material illegality, perversity and contrary to the facts and evidence on record.
5.5 Thus, the learned APP has submitted although cogent and material evidence had been produced by the prosecution and the case was proved beyond reasonable doubt, the trial Court has committed a grave error in acquitting the accused and accordingly, it is urged that present appeal may be allowed by quashing and setting aside the impugned judgment and order of acquittal.
Page 6 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023
6. On the other hand, learned advocate Mr. Umang Oza for the respondent No.2 - accused, while supporting the impugned judgment and order of the trial Court, submitted that the learned trial Judge has, after due and proper appreciation and evaluation of the evidence on record, has come to such a conclusion and has acquitted the accused, which is just and proper. He submitted that it is trite law that if two views are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality.
6.1 The learned advocate for the respondent - accused submitted that the ingredients of the offence alleged against the accused are not proved by the prosecution beyond reasonable doubt and there were several contradictions and omissions in the evidence on record and therefore, the learned trial Judge has rightly acquitted the accused of the charges levelled against him.
6.2 It is submitted that most of the prosecution witnesses are the interested witnesses and/or have not supported the case of Page 7 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023 R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 the prosecution and declared hostile. Accordingly, the learned trial Judge has rightly acquitted the respondent - accused as the prosecution has failed to bring home the charge against the accused.
6.3 Thus, making above submissions, it is urged that no interference is required at the hands of this Court and eventually, it is urged that the present appeal may be dismissed.
7. Before adverting to the facts of the case, it would be worthwhile to refer to the scope in acquittal appeals. It is well settled by catena of decisions that an appellate Court has full power to review, re-appreciate and consider the evidence upon which the order of acquittal is founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice 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 reaffirmed and strengthened by the trial Court.
7.1 Further, if two reasonable conclusions are possible on the Page 8 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023 R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrive at would not be arrived at by any reasonable person, and therefore, the decision is to be characterized as perverse.
7.2 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. That the duty is cast upon the the appellate Court, in such circumstances, re- appreciate the evidence to arrive to just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged.
7.3 In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, (2019) 2 SCC Page 9 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023 R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 752, the Apex Court has observed that, "The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court".
7.4 Yet in another decision in Chaman Lal v. The State of Himachal Pradesh, rendered in Criminal Appeal No. 1229 of 2017 on 03.12.2020, 2020 SCC OnLine SC 988 the Apex Court has observed as under:
"9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:
12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny Page 10 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023 R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445)
13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."
14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v.
State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755)
15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42) "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
Page 11 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 (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 emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.
17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."
18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Page 12 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023 R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;
(ii) The High Court's conclusions are contrary to evidence and documents on record;
(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;
(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;
(v) This Court must always give proper weight and consideration to the findings of the High Court;
(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal." A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.
19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
9.2 When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under:
"20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into Page 13 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023 R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4 SCC 635, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE 1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P (2009) 10 SCC 636)."
(emphasis supplied) 9.3 It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.
9.4 In the recent decision of Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436, this Court again had an occasion to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under:
"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on re- appreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p. 233)
"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence.
Page 14 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case."
31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on re- appreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court.
While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416) "8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well- considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no Page 15 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023 R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case."
31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.
31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under: (AIR pp. 80910) "5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 Page 16 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023 R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 Cr.P.C came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.
It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.
If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.
31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."
8. Here in this case, the undisputed fact which has emerged on record is accused - respondent No.1 is mother of Page 17 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023 R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 respondent Nos. 2 and 3 and mother in law of the deceased and respondent No.3 is the husband of the deceased and respondent No.2 is elder brother of respondent No.3. As stated above respondent Nos. 1 and 3 have expired. As such role of respondent No.2 is to be seen in this case.
8.1 It is admitted position on entire record that nobody claims to have seen the accused persons at the scene of offence. As such, the declaration claimed to have been made before Champaben Manilal, Dr. Ashish Ganotara and Dr.Jivyesh Chaudhary is to be seen. As per the case of the prosecution, deceased Madhuben made oral declaration attributing the act of sprinkeling kerosene and setting her on fire to the accused persons were made to Kankuben Fatabhai, Shardaben Laxman has not been supported by the evidence of Fatabhai Gandabhai, Kankuben Fatabhai, Sardaben Fatabhai and laxmanbhai Mangabhai. On the contrary, in the evidence of Dr. Ashish Ganotra, Dr. Jivyesh Chaudhary and Champaben Manilal it is coming that deceased Madhuben has made declaration that she has burnt herself.
8.2 In this case as it emerges that the deceased died due to burn injuries as per the evidence of Dr. Ganotara and Dr.Chaudhary. She was also treated for the burn injuries in the VS Hosptial. Dr. Bharwad was also examined and the role he Page 18 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023 R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 played was declaring her as a dead person. The death of the deceased is unnatural death which cannot be denied by the defence. The post morterm of the deceased also clarifies the burn injuries and the cause of the death. Dr. Ravindra Bhise who has conducted the post morterm has opined that the burn injuries could be caused by other persons by sprinkling kerosene and setting her on fire and he has also agreed that burn injuries could be self inflicted also. So as per the case of the prosecution the death of the deceased was unnatural whether it was homicidal or suicide. For that evidence is to be re-appreciated.
8.3 As per the case of the prosecution before four months of the incident, accused - respondent No.3 was demanding Rs.2500/- from the deceased's father and he started torturing the deceased for that purpose. It is also the case of the prosecution that two months prior to the incident, accused- respondent No.3 was invited at the home of Fatabhai and after completion of baby-shower ceremony, he told Fatabhai that deceased is having illicit relation with Laxmanbhai.
8.4 As per the prosecution version, allegations of harassment were against respondent No.3 and he was alleging that deceased is having illicit relationship with Laxmanbhai and was demanding Rs.2500/- and this incident of harassment and Page 19 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023 R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 demanding Rs.2500/- took place in presence of Fatabhai and Laxmanbhai.
8.5 Considering the evidence on record, witness Fatabhai, Kankuben, Laxmanbhai and Shardaben, not supported the version of prosecution. As such the case of prosecution that the deceased has made some declaration before Kankuben attributing the act of sprinkling kerosene and setting fire. This version is not supported by the witnesses.
8.6 It has come on record that when the deceased Madhuben was brought to the hospital, the first version made by her before two doctors and Champaben that burn injuries are due to self immolation and thereafter came second version in way of statement as well as dying declaration attributing the act upon respondents - accused. As such when two different versions have come in evidence it is to be seen that whether mental condition of the deceased at the time of declaration was sound and was able to make declaration at the relevant time.
8.7 The Executive Magistrate in his evidence has stated that he has received the yadi of recording dying declaration of the deceased and which is admitted by PSI, who has sent the yadi. It is on record through the evidence of PSI and the Executive Page 20 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023 R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 Magistrate that medical opinion was sought from Dr. Jivyesh Chaudhary and it is endorsed by the Doctor on Exh.54 that "patient is conscious and co-operating" it was made on 31.01.1993 at 10:00 a.m. as such while recording statement and the dying declaration it was clear that deceased was conscious.
8.8 Again reverting to the evidence of Dr. Ganatara, first history was that she self immolated herself. Dr. Chaudhary also stated that she burnt herself and the history was taken by him. It is also clear that history was given by the patient herself.
8.9 Champaben has stated that deceased was not able to speak but thereafter she told that as she was enraged, she burnt herself. In first version before Dr. Chaudhary she herself revealed the history of self immolation cannot be disbelieved as it came from the mouth of the deceased at first point of time.
8.10 Now second aspect that the deceased has given dying declaration in the VS Hospital in the form of complaint before the PSI and in the form of dying declaration before the Executive Magistrate. The complaint at Exh.47 and dying declaration is at Exh.35.
Page 21 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 8.11 As regarding the Yadi sent to the Executive Magistrate which is at Exh.54. As per the evidence of PSI, yadi was sent through the constable in the mobile van and he himself had not gone to bring the Executive Magistrate. However, when the Executive Magistrate has arrived he was standing outside the burns ward.
8.12 Per contra evidence of Executive Magistrate is that on 31.01.1993 he was on duty as Executive Magistrate. He was knowing the PSI since one and half year. On that day when he was sitting in the police room of Civil Hospital, at about 12:00 noon PSI came there with yadi and handed over the yadi to him, upon which he made an endorsement and therafter in vehicle of PSI he went to the VS Hospital. During the journey to the VS Hospital from the Civil Hospital, he had not talked with PSI regarding recording of any statement prior to the dying declaration and he reached to the burns ward. At that time deceased was conscious and he recorded dying declaration in the question - answer form. It is also stated that she was not in position to put thumb impression. Therefore, he put a note about it below the dying declaration and thereafter he signed it. It is also stated that at the time of recording dying declaration no doctor was present. He had not talked to any doctor nor he thought it necessary to keep any doctor or nurse present. It took 25 minutes for recording dying declaration.
Page 22 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 8.13 Considering the documentary evidence on record as per the say of the Executive Magistrate, as both the hands were burnt, deceased was not in a position to affix her thumb impression. Whereas the complaint recorded by PSI shows the impression of two thumb impressions along with the signature of PSI, which is not identified by any person. As such there is material contradiction regarding thumb impression upon the complaint as well as endorsement given by the Executive Magistrate that patient did not able to afix the thumb impression due to the burn injuries on both the hands. Hence there is two sets of evidence regarding thumb impressions being affixed on the complaint and second regarding patient not in a position to affix thumb impression due to burn injuries on hands.
9. Reference is made to the decision of the Honourable Supreme Court in case of Virumal Mulchand And Anr. vs State Of Gujarat reported in AIR 1974 SC 334 that when the two sets of evidence comes on record contradictory to each-other, the evidence becomes unreliable, as observed by the Apex Court, in this case also the prosecution mainly lead two sates of evidence, one set of evidence by PSI destroying other set of evidence of Executive Magistrate. Therefore, evidence becomes unreliable.
Page 23 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 9.1 There is also inconsistency which has come on record through the evidence of PSI and Executive Magistrate. As per the evidence of PSI, he has sent his police vehicle to bring the Executive Magistrate to VS Hospital and PSI himself did not go to bring the Executive Magistrate. Whereas on other hand, the Executive Magistrate has stated that he was in police room of Civil Hospital and PSI came with Yadi to record dying declaration and he went with PSI on his vehicle to the VS Hospital. Therefore, these evidences are also destroying each other and cannot be believed.
9.2 In the present case, the glaring aspect which is coming on record that after recording of the complaint Exh.47 and in the dying declaration at Exh.35, no endorsement from the doctor has been taken either by the PSI or by the Executive Magistrate that the patient is conscious and was in a fit mental condition. Merely consciousness of a person and mental condition of a person are two different things. A person may be conscious but mentally disturbed, because of mental and physical condition at the relevant point of time, so it is necessary that mental condition of the person is to be ascertained and if it is found that person is mentally fit and can understand the questions which are asked by the authority, that declaration from the person supported with the endorsement of a medical officer becomes more cogent and Page 24 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023 R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 convincing but here in this case as per the evidence of the Executive Magistrate, no such precaution is taken before recording dying declaration or after recording the dying declaration to take endorsement of doctor regarding fit mental condition of a patient to answer the questions and same precaution is required at the time of recording complaint by PSI.
9.3 As such both these statements before the PSI and before the Executive Magistrate cannot be said to be cogent, convincing and reliable in context of first set of history given by the deceased.
10. Panch witness of scene of offence have not supported the case of prosecution. Only the recovery of clothes of accused No.1 has been supported but report of the FSL do clarifies that no kerosene was found on the clothes of respondent No.1.
10.1 As regarding seizure of clothes of respondent Nos. 2 and 3 is concerned, report of FSL reveals that residuals of kerosene were there on those clothes. Panch witness of seizure of clothes - Jayantibhai was examined, whereas second panch was dropped. Considering the evidence of Jayantibhai it is in the panchnama that the clothes were worn by the respondents and were removed and collected in the papers after drawing Page 25 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023 R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 panchnama. It is also stated that there was no smell of kerosene in the clothes. In the evidence it is recorded that at 5:30 pm he saw the clothes whereas panchnama reveals the time between 12:00 and 12:40. the clothes were seized after three days of the incident and there is no evidence that same clothes were worn by the accused on the date of incident, as such the procedure of Panchnama of seizure of clothes is doubtful.
11. Now considering the entire evidence, the prosecution case is not supported by the main witnesses of the prosecution and only statement of the deceased in the form of complaint and dying declaration are contrary to the first version stated of the deceased before two doctors regarding self immolation.
11.1 As per the complaint which is before the Police Officer, her husband - accused No.3 and accused No.2 caught hold of her and accused No.1 has sprinkled the kerosene and set her on fire, whereas before the Executive Magistrate, the contrary version that respondent No.1 had caught hold and respondent Nos. 2 and 3 set her on fire. So material discrepancy comes on record regarding who is the person who caught hold of her and who set her on fire. Therefore, the complaint and dying declaration cannot be relied upon.
Page 26 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 11.2 Moreover, it is not coming out from the evidence of any witness including parents of the deceased that there was an unhealthy married life with respondent No.3. On the contrary it is coming out that married life was happy, and all the witnesses examined from the paternal side of the deceased have not supported the case of the prosecution.
12. Considering the entire evidence and as stated above, the case which is rest upon the statement by the deceased in the form of complaint and dying declaration have inconsistent version more particularly contrary to the first version before the doctors. Both are contrary to each other and when first version is supported by the evidence of doctors, the evidence of the prosecution became unreliable and cannot sustained. Moreover, when other evidence which are evidence of parents and relatives of the deceased not supporting the case of prosecution, findings and appreciation of evidence by the trial Court cannot be said to be contrary to law.
13. Reference is made to the decision of the Honourable Supreme Court in case of Kanti Lal vs. State of Rajasthan reported in (2009) 12 SCC 498, wherein in para 32 it is observed that;
"32. It is well settled that one of the important tests of the credibility of the dying declaration is that the person, who recorded it, must be satisfied that the deceased was in a fit Page 27 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023 R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 state of mind. For placing implicit reliance on dying declaration, the court must be satisfied that the deceased was in a fit state of mind to narrate the correct facts of occurrence. If the capacity of the maker of the staement to narrate the facts is found to be impaired, such dying declaration should be rejected, as it is hightly unsafe to place reliance on it. The dying declaration should be coluntary and should not be prompted and physical as well as mental fitness of the maker is to be proved by the prosecution."
13.1 Under these circumstances, the dying declaration recorded by the Executive Magistrate does not pass the credibility test as laiddown by the Honourable Supreme Court.
14. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:-
"6. This Court has held in Kalyan v. State of U.P., (2001) 9 SCC 632 :
"8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, Page 28 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023 R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 (1973) 2 SCC 808, this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed:
"27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of "The Proof of Guilt" by Glanville Williams, second edition:
"I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos."
28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not Page 29 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023 R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793, as is clear from the following observations:
"Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations."
"9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact;
(ii) the noninterference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court."
8. In Arulvelu and another versus State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under:
"36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law."
15. Thus, on re-appreciation and reevaluation of the oral and the documentary evidence on record, as well as considering the settled legal position, it transpires that the prosecution has failed to prove the case against the accused beyond reasonable doubt inasmuch as the ingredients of the offence alleged are Page 30 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023 R/CR.A/567/1995 CAV JUDGMENT DATED: 06/01/2023 not fulfilled. The Court has gone through in detail the impugned judgment and order and found that the learned trial Judge has meticulously considered the depositions of all the witnesses and came to the conclusion that the prosecution has failed to prove the case against the accused beyond reasonable doubt.
16. In view of the aforesaid discussion and observations, in the considered opinion of this Court, the prosecution has failed to bring home the charge against accused for want of sufficient material. The findings recorded by the learned trial Judge do not call for any interference. Resultantly, the appeal fails and is dismissed accordingly. Impugned judgment and order dated 07.02.1995, passed in Sessions Case No. 118 of 1993 by the learned Additional City Sessions Judge, Court No.16, Ahmedabad, recording the acquittal is confirmed. Bail bond, if any, shall stand cancelled. R&P, if received, be transmitted back forthwith.
(S.H.VORA, J) (RAJENDRA M. SAREEN,J) DRASHTI K. SHUKLA Page 31 of 31 Downloaded on : Sat Jan 07 20:57:52 IST 2023