Gujarat High Court
State Of Gujarat vs Bharatkumar Jivabhai Gondalia on 7 June, 2024
NEUTRAL CITATION
R/CR.A/767/1997 JUDGMENT DATED: 07/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 767 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
and
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
BHARATKUMAR JIVABHAI GONDALIA
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Appearance:
MS DIVYANGNA ZALA APP for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1
MR NR KODEKAR(5020) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
and
HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 07/06/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE J. C. DOSHI) 1 Feeling aggrieved and dissatisfied with the judgment and Page 1 of 20 Downloaded on : Mon Jun 10 20:45:47 IST 2024 NEUTRAL CITATION R/CR.A/767/1997 JUDGMENT DATED: 07/06/2024 undefined order of acquittal dated 16.07.1997 passed by the learned Additional Sessions Judge, Bhavnagar in Sessions Case No.169 of 1993, whereby the respondent accused came to be acquitted for the offences under sections 498-A and 306 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 is that present respondent-accused and the deceased were the husband and wife. It is the case of the prosecution that present respondent-accused by keeping doubt over the character of her wife gave physical and mental torture and thereby abetted her to commit suicide. It is also the case of prosecution that since the physical and mental torture being unbearable the deceased by pouring kerosene on herself committed suicide and thus the accused committed the aforesaid offence. FIR was lodged with B-Division Police Station, Bhavnagar City.
3. In pursuance of the complaint lodged by the complainant, the investigating agency recorded statements of the witnesses, drawn panchnama of scene of offence, discovery and recovery of weapons and obtained FSL report for the purpose of proving the offence. After having found sufficient material against the respondent accused, charge-sheet came to be filed in the Court of learned JMFC, Palitana. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Bhavnagar as provided under section 209 of the Code.
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4. Upon committal of the case to the Sessions Court, Godhra, learned Sessions Judge framed charge at Exh.4 against the respondent accused for the aforesaid offences. The respondent accused pleaded not guilty and claimed to be tried.
5. In order to bring home charge, the prosecution has examined witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 2 of the impugned judgment and order.
6. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondent accused so as to obtain explanation/answer as provided u/s 313 of the Code. In the further statement, the respondent accused denied all incriminating circumstances appearing against him as false and further stated that he is innocent and false case has been filed against him.
7. We have heard learned APP for the appellant - State and minutely examined oral and documentary evidence adduced before the learned Trial Court.
8. Learned APP would submit that learned sessions court has seriously erred in acquitting the accused. She would further submit that learned sessions court has materially erred in interpreting the evidence on record and did not call application of presumption available under section 113-A of the Evidence Act as the marriage span has been less than seven years between the party. She would further submit that important Page 3 of 20 Downloaded on : Mon Jun 10 20:45:47 IST 2024 NEUTRAL CITATION R/CR.A/767/1997 JUDGMENT DATED: 07/06/2024 undefined witness who are the close relatives of the deceased have categorically stated that deceased was subjected to mental and physical torture at the hands of the accused and such mental and physical cruelty ignited the deceased to commit the suicide. She would further submit that all the essential ingredients of Section 498-A and 306 of the IPC were established before the sessions court; but they are materially ignored and therefore she would submit to interfere with the impugned judgment and order of acquittal.
9. Having argued so, learned APP would submit that since the cases of bribe burning has been increasing in the country, the court handling such cases has to be alive to the aspect. She would further submit that the Court trying such kind of cases should not adopt the hyper-technical view to deny the aspect. She would further submit that merely close relatives of the deceased are examined would not negate the case of the prosecution. She would further submit that in case of extending physical or mental cruelty normally outsider would not venture into and therefore, the presence of their evidence is to too high expectation. She would further submit that in such circumstances, the evidence of close relatives of the deceased who are examined would not render the case of the prosecution case as no case.
10. Upon above submissions, she would submit to allow this appeal and to unsettle the impugned judgment and order of acquittal and would request the Court to upturn the impugned judgment and to convict the accused by passing appropriate order of conviction and sentence.
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11. We have heard learned APP for the appellant - State and minutely examined the evidence both oral and documentary. Learned advocate for the accused did not present.
12. At the outset, let refer to Sections 498-A, 107 and 306 of the IPC charge of which are levelled against the accused.
"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 a term which may extend to three years and shall also be liable to fine.
107. Abetment of a thing.-- 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.
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 fine.
13. A plain reading of Section 498-A of the IPC would indicate that in order to prove that the husband or relative of the husband of woman subjecting her to cruelty, the willful conduct of the accused viz., husband or relative of the husband has to be proved of such a nature as is likely to drive the woman to Page 5 of 20 Downloaded on : Mon Jun 10 20:45:47 IST 2024 NEUTRAL CITATION R/CR.A/767/1997 JUDGMENT DATED: 07/06/2024 undefined commit suicide or to cause grave injury or danger to her life, limb or health. The harassment to the wife must be of such a nature that it was meted with a view to coercing her or any person related to her to meet any indecisive demand for any property or valuable security.
14. 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 :
"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, Page 6 of 20 Downloaded on : Mon Jun 10 20:45:47 IST 2024 NEUTRAL CITATION R/CR.A/767/1997 JUDGMENT DATED: 07/06/2024 undefined 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 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."
15. Simultaneously, a 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 Page 7 of 20 Downloaded on : Mon Jun 10 20:45:47 IST 2024 NEUTRAL CITATION R/CR.A/767/1997 JUDGMENT DATED: 07/06/2024 undefined 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."
16. 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.
17. 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 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 Page 8 of 20 Downloaded on : Mon Jun 10 20:45:47 IST 2024 NEUTRAL CITATION R/CR.A/767/1997 JUDGMENT DATED: 07/06/2024 undefined 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.
18. In background of the above legal position, if we examine the evidence on record, the prosecution has examined the complainant-father of the deceased as PW 2-Madhavdas Gangaram (Exh.15). He has produced the FIR at Exh.16. He does not speak of any specific incident of the harassment and cruelty which attracts the offence of Section 498-A read with Section 306 of the IPC. No specific act or omission of the act has been deposed by this witness which instigated the deceased to commit suicide or would render the deceased with no alternative but to commit suicide.
19 PW 3-Shivuben Madhavdas (Exh.17) is the mother in law of the deceased who has deposed alike her husband.
20 PW 4-Minakshiben (Exh.18) is the younger sister of the deceased. Her deposition indicates that husband of the deceased was doubting her character; but she did not depose any kind of cruelty or specific incident which has led the deceased to commit suicide.
21 PW 5-Dr.Rajeshbhai (Exh.20) is the Doctor who conducted the autopsy of the deceased. Deposition of this witness is formal in nature as the death of the deceased was not suicidal; but accidental.
Page 9 of 20 Downloaded on : Mon Jun 10 20:45:47 IST 2024NEUTRAL CITATION R/CR.A/767/1997 JUDGMENT DATED: 07/06/2024 undefined 22 PW 6-Urmilaben (Exh.22) is the elder sister of the deceased. Her deposition is also of the same nature that she alleges general wear and tear of the life. She did not depose about any specific incident which defined the cruelty or harassment at the hands of the accused which instigated the deceased to commit suicide.
23 PW 7 - Ghanshyambhai (Exh.23) is the brother in law (Banevi) of the deceased who also deposed on the same line; but without mentioning any specific incident which defined the cruelty or harassment at the hands of the accused which instigated the deceased to commit suicide.
24 All these witnesses are close relatives of the deceased. However none of them have deposed about the cruelty or harassment as defined in Section 498-A of the IPC and all the essential ingredients of Section 498-A, 306 and 107 of the IPC are missing and none of them put the evidence to the effect that particular reason or incident being proximity in time instigated the deceased to commit suicide.
25 It has also come on record through the deposition of IO that statement of the neighbours were recorded during the course of investigation; but none of them have supported the allegations levelled against the accused and therefore their statement has not been forming part of the charge-sheet. This is an important aspect. The IO who is expected to conduct the fair investigation of the offence independently and was required to Page 10 of 20 Downloaded on : Mon Jun 10 20:45:47 IST 2024 NEUTRAL CITATION R/CR.A/767/1997 JUDGMENT DATED: 07/06/2024 undefined put even the statement of the neighbours in the charge-sheet papers so as to say that investigation is balanced. In nutshell, there is no evidence on record which may lead the trial court to believe that case of prosecution is established beyond all reasonable doubt.
26 At this juncture, I may refer to some recent pronouncement of the Hon'ble Supreme Court in regards to the offence under Section 306 of the IPC. In Kashibai & Ors. vs. the State of Karnataka [2023 LiveLaw (SC) 149] the Hon'ble Apex Court after referring to well celebrated earlier judgments in case of M. Mohan Vs. State Represented by the Deputy Superintendent of Police [2011 3 SCC 626]; State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73] and Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) ((2009) 16 S (2010) 3 SCC (Cri) 367] has held in paragraph 14 and 15 as under:
"14. Though it is true that as per Section 113A of the Evidence Act, when the question arises as to whether commission of suicide by a woman had been abetted by her husband or any relative of her husband, and when 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 can presume, having regard to the other circumstances, that such suicide has been abetted by her husband or such relative of her husband. However, mere fact of commission of suicide by itself would not be sufficient for the court to raise the presumption under Section 113A of the Evidence Act, and to hold the accused guilty of Section 306 IPC.Page 11 of 20 Downloaded on : Mon Jun 10 20:45:47 IST 2024
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15. In Mangat Ram Vs. State of Haryana, this Court considering the provisions of Section 498A and 306 of IPC in the light of the presumption under Section 113A of the Evidence Act, observed as under-
"30. We are of the view that the mere fact that if a married woman commits suicide within a period of seven years of her marriage, the presumption under Section 113-A of the Evidence Act would not automatically apply. The legislative mandate is 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. So far as the present case is concerned, we have already indicated that the prosecution has not succeeded in showing that there was a dowry demand, nor would the reasoning adopted by the courts below would be sufficient enough to draw a presumption so as to fall under Section 113-A of the Evidence Act."
27 To attract the ingredients of Section 306 of the IPC, the Hon'ble Apex Court in case of Yaddanapudi Madhusudhana Rao The State Of Andhra Pradesh & Ors [2023 LiveLaw (SC) 441] Page 12 of 20 Downloaded on : Mon Jun 10 20:45:47 IST 2024 NEUTRAL CITATION R/CR.A/767/1997 JUDGMENT DATED: 07/06/2024 undefined framed the importance of the abetment as defined in Section 107 of the IPC. Paragraph 9 thereof reads as under:
"9. To attract the ingredients of Section 306 IPC, there must be evidence to substantiate the existence of suicide It should be followed by abetment, as required under Section 107 of the IPC. In as much as we do not find any merit in evidence to support the case of the prosecution that there was a suicide, thereby the statement recorded from LW25 itself shows that the deceased was alling and therefore, not keeping in good health."
28 With profit I may also refer to judgment in case of Kumar @ Shiva Kumar Versus State Of Karnataka [2024 (0) AIJEL-SC 73335] where Hon'ble Apex Court having referred to Section 306 and 107 of the IPC and surveying the earlier pronouncement in paragraph 47 has held as under.
"47. Human mind is an enigma. It is well neigh impossible to unravel the mystery of the human mind. There can be myriad reasons for a man or a woman to commit or attempt to commit suicide: it may be a case of failure to achieve academic excellence, oppressive environment in college or hostel, particularly for students belonging to the marginalized sections, joblessness, financial difficulties, disappointment in love or marriage, acute or chronic ailments, depression, so on and so forth. Therefore, it may not always be the case that someone has to abet commission of suicide. Circumstances surrounding the deceased in which he finds himself are relevant."Page 13 of 20 Downloaded on : Mon Jun 10 20:45:47 IST 2024
NEUTRAL CITATION R/CR.A/767/1997 JUDGMENT DATED: 07/06/2024 undefined 29 The submission of learned APP that the learned sessions court has not properly applied the presumption under Section 113-A of the Evidence Act has been appropriately dealt with by the Hon'ble Apex Court in the above referred case and believed that before such presumption under Section 113-A of the Evidence Act is applied that mere act to commit suicide would not be sufficient for the Court to raise the presumption under Section 113-A of the Evidence Act and to held the accused guilty of Section 306 of the IPC.
30 At this juncture I may also refer to judgment in case of State Of Gujarat Versus Mosin Husenbhai Bhoda & Ors.[2024 GLR (1) 693] wherein this Court after referring to various pronouncement of the Hon'ble Apex Court has held that to invoke presumption under Section 113-A of the Act, the prosecution has to prove that deceased was subjected to cruelty as defined in Section 498-A of the IPC. Thus, learned APP failed to demonstrate any illegality or perversity in the impugned judgment and order. We find no infirmity in the judgment and order of acquittal acquitting the accused.
31 It cannot go unnoticed that that in view of principles of criminal jurisprudence, presumption of innocence runs in favour of the accused unless proven guilty. This presumption continues to operate at all stages of the trial. The presumption of innocence gets established when the charge alleged against him ends in acquittal. The presumption doubles once the accused is proved innocent. A person/ prosecution, who intends to Page 14 of 20 Downloaded on : Mon Jun 10 20:45:47 IST 2024 NEUTRAL CITATION R/CR.A/767/1997 JUDGMENT DATED: 07/06/2024 undefined prosecute the accused for charge, in which he has been acquitted after appreciation of evidence on record gets on higher footings and his expected to be rebut the same in appeal.
32 It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The " two- views theory" has been judicially recognised by the courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the trial court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence.
33 At this juncture, we may refer the judgment of Muralidhar v. State of Karnataka, (2014) 5 SCC 730, wherein the Hon'ble Apex Court dealing with the appeal against acquittal, has held as under :-
(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against Page 15 of 20 Downloaded on : Mon Jun 10 20:45:47 IST 2024 NEUTRAL CITATION R/CR.A/767/1997 JUDGMENT DATED: 07/06/2024 undefined acquittal;
(iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and
(iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.
34 In Chandrappa v. State of Karnataka, (2007) 4 SCC 415, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.Page 16 of 20 Downloaded on : Mon Jun 10 20:45:47 IST 2024
NEUTRAL CITATION R/CR.A/767/1997 JUDGMENT DATED: 07/06/2024 undefined (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to 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.
35 Recently, while reiterating the earlier view, in case of Mallappa v. State of Karnataka, (2024) 3 SCC 544, the Hon'ble Apex Court observed as under:-
"25. No doubt, an order of acquittal is open to appeal and there Page 17 of 20 Downloaded on : Mon Jun 10 20:45:47 IST 2024 NEUTRAL CITATION R/CR.A/767/1997 JUDGMENT DATED: 07/06/2024 undefined is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to re-appreciate or re-visit the evidence on record. However, the power of the High Court to re-appreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the Trial Court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.
26. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The two- views theory has been judicially recognized by the Courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the Trial Court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the Page 18 of 20 Downloaded on : Mon Jun 10 20:45:47 IST 2024 NEUTRAL CITATION R/CR.A/767/1997 JUDGMENT DATED: 07/06/2024 undefined eyes of law.
42. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:
(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive - inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court."
36 In view of above and considering the facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made Page 19 of 20 Downloaded on : Mon Jun 10 20:45:47 IST 2024 NEUTRAL CITATION R/CR.A/767/1997 JUDGMENT DATED: 07/06/2024 undefined out to interfere with the impugned judgment and order of acquittal.
37 Resultantly, present Criminal Appeal stands dismissed. Bail and bond discharged. Judgment and order of acquittal dated 16.07.1997 passed by the learned Additional Sessions Judge, Bhavnagar in Sessions Case No.169 of 1993 stands approved. Record and Proceedings be send back. Non valuable Muddamal if any, be destroyed, if already not destroyed.
(SANDEEP N. BHATT,J) (J. C. DOSHI,J) sompura Page 20 of 20 Downloaded on : Mon Jun 10 20:45:47 IST 2024