Bombay High Court
The State Of Maharashtra vs Ramchandra Vitthal Chaugule on 31 January, 2020
Author: K.R.Shriram
Bench: K.R.Shriram
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221.Apeal1205.03.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE
CRIMINAL APPEAL NO.1205 OF 2003
The State of Maharashtra )
(At the instance of PSI Sawantwadi Police )
Station, Dist.Sindhudurg )....Appellant
(Org.Complainant)
V/s.
Ramchandra Vitthal Chaugule )
Age : about 34 years, )
R/o. Zirangwadi, Tal. Sawantwadi )
Dist. Sindhudurg )....Respondent
----
Ms.Anamika Malhotra APP for appellant-State.
Mr.Irfan Shaikh appointed as Amicus Curiae.
----
CORAM : K.R.SHRIRAM,J
DATE : 31.1.2020
ORAL JUDGMENT:-
1. This is an appeal impugning an order and judgment dated 10.7.2003 passed by the Sessions Judge, Sindhudurg, acquitting respondent of offences punishable under Sections 498-A ( Husband or relative of husband of a woman subjecting her to cruelty) and 306 (Abetment of suicide) of the Indian Penal Code.
2. Before I proceed with the case, I must express my appreciation for the assistance rendered by Mr.Irfan Shaikh, learned amicus curiae.
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3. On 29.9.2001, PW-1 Vivek Vasant Gawade lodged a complaint with Panvel Railway police that his sister Rasika had got married to accused in 1992 and was residing with him at Kolgaon- Zirangewadi. For 3 years, Rasika was treated well but as she was unable to conceive, accused used to beat her and abuse her in a drunken condition and he was informed by Rasika from time to time. It seems Rasika had complained to their elder brother Vijay and maternal Uncle Tukaram Mahadeo Naik on many occasions. When accused was asked not to ill-treat Rasika, there was no improvement in the behaviour of accused and on the contrary resulted in more abuses and more beating.
4. During Ganpati festival in 2001, PW-1 had gone to their village Saramal, Nangartas to which family of Rasika belonged to. On 30.8.2001, PW-1 went to meet his aunt Suhasini at Morgaon. On 1.9.2001, when PW-1 was at Morgan, a phone call was received from Rasika who complained that accused had beaten her and driven her out of the house and she did not want to live with her husband- accused. Therefore, PW-1 Vivek and PW-2 Mahadeo, the son of maternal Uncle of PW-1 went and brought Rasika from Kolgaon. At that time, Rasika told them about the incident of beating. Rasika was KJ ::: Uploaded on - 05/02/2020 ::: Downloaded on - 12/06/2020 11:42:26 ::: 3/19
221.Apeal1205.03.doc at Morgaon from 1.9.2001 till 11.9.2001. In the meanwhile, PW-1 went to Mumbai on 6.9.2001 and returned on 10.9.2001. On 11.9.2001 at about 3.00 p.m. PW-1 and Rasika were to go to Bhandup to the house of their elder brother Vijay. It is stated that before going to railway station, Rasika, PW-1 and PW-2 went to Sawantwadi police station where Rasika complained about ill-treatment to her.
5. It is prosecution's case that thereafter Rasika and PW-1 boarded Konkan Kanya Express train on 11.9.2001 for Mumbai. At about 3 to 3.30 a.m. on 12.9.2001 when the train was somewhere near about Nagothane station, Rasika went to the latrine. As Rasika did not return for a long time, PW-1 knocked the door of the latrine and as nobody opened the door, at Panvel railway station at about 4.00 a.m., PW-1 broke the glass of the window of the latrine and found Rasika had hanged herself with her saree on her person. PW-1 immediately informed the Railway Station Master and the Engine driver but they informed him that the train could not be stopped. At Chhatrapati Shivaji Maharaj Terminal, Mumbai Police were present, they drew spot panchanama and inquest panchanama of the dead body of Rasika. Thereafter body was sent to the post mortem and railway police recorded the statements. Complaint was lodged on 29.9.2001 at railway police station against accused stating that KJ ::: Uploaded on - 05/02/2020 ::: Downloaded on - 12/06/2020 11:42:26 ::: 4/19
221.Apeal1205.03.doc accused was responsible for suicide and ill-treatment of Rasika. Statement of PW-2 was recorded and also some more witnesses.
6. The charge-sheet lists 15 witnesses and only 4 have been examined. Strangely, prosecution did not examine its own Investigating officer who had filed the charge-sheet.
7. As the offence under Section 306 of the IPC is triable exclusively by the Court of sessions, the case was committed to Sessions court.
8. The charge-sheet was sent by the Court of Judicial Magistrate, First Class at Sawantwadi. The charges were framed and accused pleaded not guilty and claimed to be tried.
9. The case of the defence is that accused had not subjected Rasika to cruelty, Rasika was depressed and mentally affected and accused was not responsible for suicide.
10. Before I proceed further I need to note that it is very difficult to believe the case of PW-1 that he claims to have broken the window of the train in 2 minutes when the train would normally stop KJ ::: Uploaded on - 05/02/2020 ::: Downloaded on - 12/06/2020 11:42:26 ::: 5/19
221.Apeal1205.03.doc at Panvel. Panvel was not their final destination. Train stopped for a very short time at Panvel. PW-1 claims to have broken the glass of the toilet and found Rasika had committed suicide by hanging herself and rushed to the office of Station Master to inform him and also ran to inform the Engine driver and came back in the train.
11. The prosecution led evidence of 4 witnesses viz., Vivek Vasant Gawade, being the youngest brother of Rasika as (PW-1); Mahadeo Ganesh Naik, a cousin of deceased Rasika who saw them off at Sawantwadi as (PW-2); Pandurang Baburao Dhamale, PSI who recorded the complaint as (PW-3); and Bhivasen Rama Gawas, Investigating officer as (PW-4).
12. As against this, defence recorded evidence of one Sitaram Sakharam Kawale, a neighbour of accused as (DW-1); Raghunath Gopal Palkar, Police Sub Inspector who was Investigating officer, (because railway police at Panvel after recording FIR had transferred the file to Sawantwadi police station) as (PW-2); and Dr.Pandurang Namdeo Kadam, General Practitioner having his clinic at Jeevan Jyot hospital at Sawantwadi as (PW-3).
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13. The trial Court has listed various loopholes, omissions and contradictions and for the sake of brevity, I do not wish to reproduce the same.
14. First of all, the delay of 17 days in lodging the complaint has not been explained. Secondly, Vijay, brother of Rasika and PW-1 and their uncle Tukaram Mahadeo Naik to whom, PW-1 says, Rasika is alleged to have informed about her torture, have not been examined. PW-1 was living in Mumbai with his brother and Rasika was living with her husband, accused. PW-1 does not say anywhere that he even saw Rasika being treated with cruelty. PW-1 admits that Rasika was unhappy because she could not conceive. When a suggestion was put to him that Rasika had attempted suicide for 2 to 3 times in a fit of madness, PW-1 does not deny but says he does not know whether Rasika attempted. PW-1 says he does not know that Rasika went to the well saying that she had headache, she did not want to live and she wanted to commit suicide and the neighbours had brought her back from the well.
As against this, DW-1 says that once Rasika has gone to a well and was sitting and when he asked what she was doing, she said that she wanted to commit suicide. DW-1 brought her back.
DW-1 says that Rasika used to behave like lunatic. DW-1 is KJ ::: Uploaded on - 05/02/2020 ::: Downloaded on - 12/06/2020 11:42:26 ::: 7/19
221.Apeal1205.03.doc neighbour of accused and unrelated to accused. DW-1 says that Rasika was never treated badly by accused and also adds that accused did not take liquor. DW-1 says Rasika never even informed him that accused used to beat her.
PW-1 also admits that Rasika had been taken to Jeevan Jyot hospital at Sawantwadi by Madhukar, the brother of accused but he denies that Rasika was admitted in the hospital for treatment of lunacy.
As against this, DW-3, Dr.Pandurang Namdeo Kadam says that Rasika was brought to him in Jeevan Jyot hospital. He examined her and she had depressive psychosis which relates to symptoms of depression, anxiety and irrelevant behaviour.
PW-1 says he never took Rasika to any hospital for any medical treatment. PW-1 also says that in his statement recorded by the police he does not mention that his cousin PW-2 had come to sawantwadi railway station to see them of.
PW-2 says that his statement was recorded by police, 3 weeks later. He also says that Rasika was treated for some time for mental stress and physical strain. PW-2 says that he might have gone 2 to 3 times to her house at Kolgaon (in 9 years of her marriage). PW-2 also says that Rasika was sad as she had no child. PW-2 does not anywhere states that he ever saw accused physically assaulted or KJ ::: Uploaded on - 05/02/2020 ::: Downloaded on - 12/06/2020 11:42:26 ::: 8/19
221.Apeal1205.03.doc treated Rasika with cruelty.
15. PW-1 and PW-2 say they went to the Sawantwadi police station before PW-1 and Rasika left for Mumbai on 11.9.2001 and Rasika told the police about cruelty but no complaint is produced on record.
16. It is settled law that under Section 498A of IPC, every cruelty is not an offence. The cruelty must be of such a degree as contemplated by the Section, i.e., it must be wilful conduct of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb and health of the woman.
17. As far as cruelty under Section 498A is concerned, prosecution relies mainly on evidence of P.W.-1 Vivek Vasant Gawade and P.W.-2 Mahadeo Ganesh Naik. P.W.1 Vivkek, is the brother of Rasika and P.W.-2 Mahadeo is the maternal uncle's son. Both are close relatives.
18. Accused has come with defence that Rasika was having mental problems. Accused says that Rasika even told him that she was mentally ill and marriage should not have been performed, but it was KJ ::: Uploaded on - 05/02/2020 ::: Downloaded on - 12/06/2020 11:42:27 ::: 9/19
221.Apeal1205.03.doc performed by deception. Accused says at the suggestion of the father of Rasika, he even took her to KEM Hospital, Bombay and for four to five months they stayed at Bombay and medicines were given to Rasika. Accused says that as it was not possible to live in Bombay permanently, they returned to the matrimonial home and requested Rasika's maternal uncle to send the medicines. Sometimes he sent the medicines and sometimes he did not. Accused also led evidence of DW.-3 Dr. Pandurang Namdeo Kadam to prove that Rasika was suffering from depression and anxiety etc., just a few days before the alleged incident. Possibly, that may be the reason why Rasika was taken to the house of her maternal uncle first and then was being taken to Mumbai. Possibility of suicide in such a state will have to be kept in mind and in effect of depression and anxiety, a person may do something totally wrong when they are mentally disturbed.
19. As observed by me earlier also, cruelty itself has not been proved. Therefore, there is no evidence to prove the cruelty under Section 498A of IPC.
20. Section 306 reads as under :
"306. 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 KJ ::: Uploaded on - 05/02/2020 ::: Downloaded on - 12/06/2020 11:42:27 ::: 10/19
221.Apeal1205.03.doc fine."
What is abetment and who is an abettor can be found in Sections 107 and 108 of IPC which read as under:
"107: Abetment of a thing:- A person abets the doing of a thing, who:- (1) Instigates any person to do that thing; or (2) 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 (3) Intentionally aids, by any act or illegal omission, the doing of that thing."
"108. Abettor.--A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor. "
21. Here is a case of abetment by instigation. When is a person said to instigate another ? The word 'instigate' literally means to goad, or urge, or to provoke, or incite, or encourage, to do an act, which the person, otherwise would not have done. It is well settled, that in order to amount to abetment, there must be mens rea or community of intention. Without knowledge or intention, there can be no abetment and the knowledge and intention must relate to the act said to be abetted, i.e., suicide, in this case. In order to constitute 'abetment by instigation', there must be a direct incitement to do the culpable act. This issue has been discussed by various High Courts and Supreme Court of India and some of those pronouncements are discussed here. KJ ::: Uploaded on - 05/02/2020 ::: Downloaded on - 12/06/2020 11:42:27 ::: 11/19
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22. In Manish Kumar Sharma Vs. State of Rajasthan 1, the prosecution story was that the accused Manish Kumar had advanced some money to the victim Kusum Devi and that there were frequent quarrels between the said accused and the said Kusum Devi. Kusum Devi started living a life full of tension, which was accentuated on account of persistent demands made by the accused in respect of money. On the fateful day, the accused had, allegedly, demanded his money back and uttered the words "Randi tu marti ku nahi hai mere saath chal nahi to tujhe janase maar dunga" whereupon Kusum Devi consumed some tablets of some poisonous substance and died. After carefully considering the legal position and the concept of 'abetment', Rajasthan High Court held that, it could not be said that accused wanted, or intended, Kusum Devi to commit suicide. There was no evidence to suggest or indicate that the accused knew or had reason to believe that Kusum Devi would commit suicide.
23. In Vedprakash Bhaiji Vs. State of Madhya Pradesh 2, the facts of the prosecution case were that the accused Vedprakash and others had advanced a loan to the deceased Ramesh Kumar and that on the day prior to the incident, the accused had filthily abused 1 1995 Criminal Law Journal 3066 2 1995 Criminal Law Journal 893 KJ ::: Uploaded on - 05/02/2020 ::: Downloaded on - 12/06/2020 11:42:27 ::: 12/19
221.Apeal1205.03.doc Ramesh Kumar and had demanded an amount of Rs. 30,000/ from him, threatening that otherwise he would be killed. Again, in the night of the same day, demand was made from Ramesh Kumar for the repayment of the loan advanced. Ramesh Kumar was abused and threatened repeatedly. On the next day, Ramesh Kumar wanted to lodge a report in Police Station against the accused person; but instead committed suicide by consuming some poisonous substance. In the suicide note left by him, he blamed the accused persons, who were charged of an offence punishable under Section 306 of the IPC and were prosecuted. The Madhya Pradesh High Court, after considering the concept of 'abetment' in the light of certain previously decided cases, quashed the prosecution, holding that no case of abetting the commission of suicide had been made out.
24. In Sanju alias Sanjay Singh Sengar Vs. State of Madhya Pradesh3 the Supreme Court of India extensively dealt with the concept of 'abetment' in the context of the offence punishable under Section 306 of the Indian Penal Code. In that case, the allegation against the accused/appellant before the Supreme Court was that he had abetted the commission of suicide of his sister's husband one Chander Bhushan. The facts show that there were matrimonial 3 2002 Criminal Law Journal 2796 KJ ::: Uploaded on - 05/02/2020 ::: Downloaded on - 12/06/2020 11:42:27 ::: 13/19
221.Apeal1205.03.doc disputes between Neelam, sister of the appellant/accused and her husband and that, in connection with these disputes, the appellant had allegedly threatened and abused the said Chander Bhushan. Chander Bhushan committed suicide and the suicide was attributed by the prosecution to the quarrel that had taken place between the appellant and the said Chander Bhushan, a day prior. It was alleged that the appellant had used abusive language against said Chander Bhushan and had told him "to go and die". The appellant, who had been chargesheeted for an offence punishable under Section 306 of the Indian Penal Code, filed a Petition under Section 482 of the Code of Criminal Procedure, for quashing the proceedings against him, but his Petition was dismissed by the High Court. The petitioner had, therefore, appealed to the Supreme Court. While allowing the appeal, the Apex Court, inter alia, observed as follows :
"Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation." (Para 13 of the reported judgment).
25. A Learned Single Judge of the Kerala High Court in Cyriac, S/o Devassia and another Vs. SubInspector of Police, Kaduthuruthy KJ ::: Uploaded on - 05/02/2020 ::: Downloaded on - 12/06/2020 11:42:27 ::: 14/19
221.Apeal1205.03.doc and another,4 dealt with extensively the concept of abetment to commit suicide after referring to a number of pronouncements including the decision of the Supreme Court of India. The facts of that case were that the deceased Joseph owed Rs. 200/- to one of the accused and was not able to pay back the money. The accused had called Joseph to the bakery of accused, wrongfully restrained him and abused him in public. One of the accused also beat Joseph. Joseph felt insulted. On reaching home, he divulged his embarrassment to his wife and on the same night, committed suicide by consuming poison.
According to the prosecution, it was because of the words uttered by the accused persons and the manner in which the deceased was dealt with by them in public, that the deceased had committed suicide. The accused were being prosecuted for an offence punishable under Section 306 of the Indian Penal Code and had approached the Kerala High Court for quashing the proceedings initiated against them.
The Learned Single Judge ultimately summarized the legal position as follows :
" 17. From the discussion already made by me, I hold as follows : The act or conduct of the accused, however, insulting and abusive those may be, will not by themselves suffice to constitute abetment of commission of suicide, unless those are reasonably capable of suggesting that the accused intended by such acts consequence of suicide. Even if the words uttered by the accused or his conduct in public are sufficient to demean or humiliate the deceased and even to drive him to suicide, such acts will not amount to instigation or abetment of 4 2005 Criminal Law Journal 4322 KJ ::: Uploaded on - 05/02/2020 ::: Downloaded on - 12/06/2020 11:42:27 ::: 15/19
221.Apeal1205.03.doc commission of suicide, unless it is established that the accused intended by his acts, consequence of a suicide. It is not enough if the acts of the accused cause persuasion in the mind of the deceased to commit suicide.
18. An indirect influence or an oblique impact which the acts or utterances of the accused caused or created in the mind of the deceased and which drove him to suicide will not be sufficient to constitute offence of abetment of suicide. A fatal impulse or an ill-fated thought of the deceased, however unfortunate and touchy it may be, cannot fray the fabric of the provision contained in Section 306 IPC. In short, it is not what the deceased 'felt', but what the accused 'intended' by his act which is more important in this context."26. In Madan Mohan Singh vs. State of Gujarat 5
appellant before the Supreme Court was facing prosecution in respect of the offences punishable including under Section 306 of the IPC. The prosecution against him had been initiated on the basis of the FIR lodged by one Harshidaben, widow of Deepakbhai Joshi. The substance of allegation against the accused was that her husband Deepakbhai was serving as a driver in Ahmedabad Bharat Sanchar Nigam Ltd., in the Microwave Project Department. He had undergone bypass surgery and was advised by the doctor to avoid lifting heavy weights. The accused - Madan Mohan Singh, who was the superior of Deepakbhai, used to use Deepakbhai to run his private errands and had been harassing him. Though Madan Mohan Singh was transferred, he kept on continuously using the services of Deepakbhai. Madan Mohan Singh was then again transferred in the Microwave 5 (2010) 8 Supreme Court Cases 628 KJ ::: Uploaded on - 05/02/2020 ::: Downloaded on - 12/06/2020 11:42:27 ::: 16/19
221.Apeal1205.03.doc Project department. On the very first day, he told Deepakbhai to keep the keys of the vehicle on the table. Deepakbhai however, did not listen to him on account of which Madan Mohan Singh was angry and had threatened him of suspension. He had also threatened Deepakbhai that if he did not listen to him, he would create difficulties for him. Madan Mohan Singh had told Deepakbhai, as to how he was still alive, inspite of the insults. On 21.2.2008, Deepakbhai left his house as usual, but did not return in the evening. A missing report was lodged with the police. Ultimately, Deepakbhai's dead body was found lying in a vehicle. His wife Harshidaben then lodged a report with the police, alleging that Deepakbhai had been harassed by Madan Mohan Singh and that he had been insulted in front of the staff several times and because of that Deepakbhai was depressed and had committed suicide. A suicide note was allegedly left by the said Deepakbhai, blaming Madan Mohan Singh for his acts and stating that he was committing suicide due to his functioning style. Madan Mohan Singh approached the High Court at Gujarat and later Supreme Court of India for getting the prosecution against him quashed. Supreme Court of India while quashing the proceedings in question observed in paragraph 12 as under :
"In order to bring out an offence under Section 306 IPC specific abetment as contemplated by Section 107 IPC on the KJ ::: Uploaded on - 05/02/2020 ::: Downloaded on - 12/06/2020 11:42:27 ::: 17/19
221.Apeal1205.03.doc part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306 IPC."
27. In the judgment in the case of Ramesh Kumar vs. State of Chhattisgarh6 this Court has considered the scope of Section 306 and the ingredients which are essential for abetment as set out in Section 107 IPC. While interpreting the word "instigation", it is held in paragraph 20 as under:
"20. 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. The present one is not a case 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 been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."
28. In paragraph 19 of Shivaji Shitole and Ors. Vs. State of Maharashtra & Anr.7 this court has summed up the legal position on Section 306. Paragraph 19 reads as under:
"19. The legal position that emerges from the above discussion is as follows : Even if a person would commit suicide because of the torments of an accused, the accused cannot be said to 6 2001(9) SCC 618 7 2012(3) Bom.C.R. (CRI) 532 KJ ::: Uploaded on - 05/02/2020 ::: Downloaded on - 12/06/2020 11:42:27 ::: 18/19
221.Apeal1205.03.doc have abetted the commission of suicide by the deceased, unless the accused would intend, while causing torments to the victim/deceased, that he should commit suicide. Even if the rigour of this proposition is diluted, still, the least that would be required is, that it should be shown that the accused could reasonably foresee that because of his conduct, the victim was almost certain or at least quite likely to commit suicide. Unless that the victim should commit suicide, is either intended, or can be reasonably foreseen and expected a person cannot be charged of having abetted the commission of suicide, even if the suicide has been committed as a result of some of the acts committed by the accused. A perusal of the reported judgments show that even in cases where the accused had uttered the words such as "go and die", in abusive and humiliating language, which, allegedly, led to the committing of suicide, it was held that it would not amount to instigation and that consequently, there would be no offence of abetment of suicide."
29. In this case, it does not appear in any evidence led that accused instigated Rasika to commit suicide. Therefore, we cannot say that accused in any way provoked or instigated or incited or encouraged Rasika to commit suicide. Therefore, one cannot say accused abetted commission of suicide as defined under Section 107 of IPC.
30. The Apex Court in Ramesh Babulal Doshi Vs. State of Gujarat 8 has held that if the Appellate Court holds, for reasons to be recorded that the order of acquittal cannot at all be sustained because Appellate Court finds the order to be palpably wrong, manifestly erroneous or demonstrably unsustainable, Appellate Court can 8 1996 SCC (cri) 972 KJ ::: Uploaded on - 05/02/2020 ::: Downloaded on - 12/06/2020 11:42:27 ::: 19/19
221.Apeal1205.03.doc reappraise the evidence to arrive at its own conclusions. In other words, if Appellate Court finds that there was nothing wrong or manifestly erroneous with the order of the Trial Court, the Appeal Court need not even re-appraise the evidence and arrive at its own conclusions.
31. There is an acquittal and therefore, there is double presumption in favour of accused. Firstly, the presumption of innocence available to accused 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, accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. For acquitting accused, the Sessions Court in Appeal rightly observed that the prosecution had failed to prove its case.
32. In the circumstances, in my view, the opinion of the Trial Court cannot be held to be illegal or improper or contrary to law. The order of acquittal, in my view, need not be interfered with.
33. Appeal dismissed.
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