Gujarat High Court
State Of Gujarat vs Harijanbhangi Bharat Mangabhai on 7 October, 2022
Author: Rajendra M. Sareen
Bench: S.H.Vora, Rajendra M. Sareen
R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 463 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE S.H.VORA Sd/-
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
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
HARIJANBHANGI BHARAT MANGABHAI & 2 other(s)
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Appearance:
MS CM SHAH APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 2,3
MR PRATIK B BAROT(3711) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE S.H.VORA
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 07/10/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN) Page 1 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022 R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022
1. Present Criminal Appeal has been preferred by the appellant - State of Gujarat under Section 378 of the Criminal Procedure Code, 1973 against the judgment and order dated 20/01/1995 passed by the learned Additional Sessions Judge, Bhavnagar in Sessions Case No.198 of 1994 acquitting the respondent Nos.1 to 3 - original accused Nos.1 to 3 from the offence punishable under sections 302, 498-A and 114 of Indian Penal Code.
It is pertinent to note that the respondent Nos.2 and 3
- original accused Nos.2 and 3 have expired during the pendency of the proceedings and hence the present appeal stood abated qua respondent Nos.2 and 3 vide order dated 13/04/2022 and the present appeal is proceeded against the respondent No.1 - original accused No.1.
2. The case of the prosecution, in nutshell is as under:-
It is the case of the complainant - Hansaben that she is residing with her husband, one daughter - Asha and two sons - Dilip and Ravi and is serving in the Bhavnagar Municipal Corporation as a sweeper since last one and half years. Her earlier husband Babu Manga expired before two years and he was working in Bhavnagar Municipal Corporation and service of Babu Manga came to be obtained by Bharat Manga - her husband and she has married with the brother of her husband Bharat Manga prior to one and Page 2 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022 R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022 half years. Out of three children, one daughter and two sons are of her earlier husband and there is no children out of the wedlock with Bharat. Her Father-in-law Mangabhai and Mother-in-law Kashiben are residing besides her house.
It is further stated by the complainant in the complaint that on 27/04/1994 at 2.30 p.m. she, her daughter Asha, both the sons and Bharat were at her house. The amount of compensation of parents of Kishor, who is residing besides their house, was received. The said Kishor asked the complainant to keep the said amount and keep him along with them and do needful to marry him. It is alleged that on coming to know about the said fact, the husband, Father- in-law and Mother-in-law of the complainant abused the complainant and sprinkled kerosene on her and set her ablaze, as a result, she sustained burn injuries on her entire body and as the neighbours had come, the accused tried to save her and thereafter they brought the complainant to the hospital.
3. On the basis of the said complaint, investigation was started, statement of witnesses were recorded, inquest panchnama was carried out, panchnama of scene of offence was carried out, postmortem report was obtained and after through investigation, as there was sufficient evidence against the respondents - accused persons, Chargesheet was filed before the learned Judicial Magistrate, First Class. As the offence committed by the accused persons was Page 3 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022 R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022 exclusively triable by the Court of Sessions as per the provisions of Section 209 of Criminal Procedure Code, the learned Judge was pleased to commit the case to the Court of Sessions and the case was transferred and placed for trial in the court of learned Sessions Judge, which has been numbered as Sessions Case No.198 of 1994. Thereafter, Charge was framed against the accused for the offence punishable under sections 498-A, 302 and 114 of Indian Penal Code. The accused persons pleaded not guilty to the Charges and claimed to be tried. The prosecution, therefore, laid evidence, oral as well as documentary. After the evidence was over, Further Statement of the respondents - accused were recorded under section 313 of the Code of Criminal Procedure and arguments were heard. At the conclusion of the trial, the learned Sessions Judge was pleased to acquit the accused for the charges levelled against them. Hence, the appellant - State of Gujarat has preferred the present Criminal Appeal challenging the judgement and order of acquittal.
It is pertinent to note that the respondent No2 and 3
- original accused Nos.2 and 3 have expired during the pendency of the present appeal and hence present appeal stood abated qua respondent Nos.2 and 3 and the present appeal is required to be considered qua respondent No1 - original accused No.1.
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4. Heard Ms.C.M. Shah, learned APP for the State and Mr.Pratik Barot, learned advocate for the surviging respondent No.1.
5. Ms.C.M. Shah, learned APP has vehemently submitted that the trial court has not appreciated the deposition of the witnesses which has been corroborated with the medical evidence, first version of the complainant, Dying Declaration given before the Executive Magistrate by the deceased. The trial court has wrongly appreciated the minor omission and contradictions and the considered it to be major one and has acquitted the respondents accused from the serious offences under sections 302, 498 read with section 114 of Indian Penal Code which is erroneous, improper and illegal.
6. Mr.Pratik Barot, learned advocate for the surviving respondent No.1 - original accused No.1 has submitted that the trial court has not committed any error in acquitting the respondent accused and has rightly appreciated the evidence adduced before the trial court in its true spirit in light of the various judgements of this Court and Hon'ble Supreme Court, which requires no interference.
6.1. Mr.Barot further submitted that the sole eye witness as per the case of the prosecution is the daughter of the deceased who has been examined but the evidence of the sole eye witness does not inspire confidence and is not Page 5 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022 R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022 found to be trustworthy for the involvement of the accused in the offence. It is also submitted that when the evidence of the sole eye witness is dwell in nature, on one side involving three innocent persons and on the other-side, innocence of the accused comes out and in that sense the evidence is shakey, which cannot be relied upon.
6.2. Mr.Barot, has further submitted that there are major contradictions on record which goes to the root of the case. The medical evidence, first history of the deceased before the Doctor and the evidence of the Doctor cannot be ignored. At the same time, evidence of the Executive Magistrate and the Police Officer who recorded the complaint of the deceased which is treated to be Dying Declaration, there is conflict of time between both of them. It can be made out from the evidence that the complaint as well as the dying declaration both have been recorded at the same time by both the authorities, which is not possible and permissible in the eye of law.
6.3. Mr.Barot also submitted that evidence of the sole eye witness is not trustworthy cannot be relied upon and when the dying declaration and complaint are also doubtful and cannot be said to be proved. One more aspect has been brought on record regarding conduct of the accused No.1. In this case, defence has been brought on record where the accused No.1 extinguished fire from the body of the Page 6 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022 R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022 deceased in which his fingers have burnt for which Doctor has treated him and the accused No.1 had taken the deceased to the hospital himself. So the conduct of the accused No.1 as a husband of the deceased was very natural, which also should be considered and is rightly appreciated and the Court has come to a correct finding and rightly acquitted the accused which cannot be interfered with. He has prayed to dismiss the appeal.
7. Heard the leaned advocates for the respective parties at length and perused the impugned judgement and order of acquittal passed by the trial court as well as the entire record and proceedings.
8. It would be worthwhile to refer to the scope in Acquittal Appeals. It is well settled by is 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.
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9. We have gone through the entire record and proceedings. We have re-appreciated the evidence on record. On re-appreciation of the evidence, it appears that unfortunately the incident occurred on 27/4/1994 at 2.30 p.m. in the afternoon. It is on record that after the incident immediately the deceased was taken to the hospital and she was firstly treated by Dr.Girish Ratilal Thakkar, who has been examined as PW No.7 Ex.32 he has specifically stated in his deposition that the patient Hansaben was brought in burnt condition by Bharat Mangabhai Chauhan. The patient was conscious and she has stated that due to flame from Primus Stove she has sustained burn injuries and the Doctor examined the injuries. It is also stated by the said Doctor that there was 100% burns and the patient was referred to the burns ward. In the cross examination, the Doctor has specifically stated that the history was given by the patient which is as such first statement of the deceased before the Doctor is with respect to accidental injury and not relating to homicidal act of the accused.
10. From the medical evidence, it is clear that the deceased died unnatural death and even if it is termed to be homicidal, whether accused are involved or not is to be seen.
11. The evidence of the eye witness which is to be treated Page 8 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022 R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022 as sole eye witness in this case is the daughter of the deceased Ashaben. As per the case of the prosecution, deceased had married with accused No.1 and it was second marriage, as he was brother-in-law of the deceased and younger brother of her first husband. But this story of the prosecution is falsified to the extent that it has come on record during the evidence of the daughter of the deceased that her father's name is Babu Budha, whereas the so- called second husband of the deceased is Bharat Manga. As such there was no relation between the first husband of the deceased with the accused No.1 and accused No.1 is the distant relative of the first husband of the deceased. It is the evidence of Ashaben that she has seen all the accused sprinkling kerosene upon the deceased and lightening matchstick and throwing the same upon the deceased. This fact is also stated by the complainant in the complaint.
Now Ashaben - daughter of the deceased is examined at Ex.23. She has named all the accused, as if she has seen the entire incident and act of all the accused. In the cross examination, she has admitted that the accused No.1 is not the brother of the first husband of the deceased. It is admitted by her in her cross examination that she has not stated in her police statement that all the accused had thrown match-stick upon the deceased. The important admission in the cross examination is that she was playing with his brother in the street at the time of incident and she only had seen her mother on fire. As such, this admission Page 9 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022 R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022 clearly establishes the fact that this witness might not have seen the entire incident. One aspect which is to be considered is that Ashaben is only aged 12 years. As such, she is a child witness and as per her own evidence, she after the incident immediately had run to the house of her aunty, mother and father of the deceased. It is surprising that the witness has also stated the reason why the incident occurred and stated that it was dispute of money which has not come in the entire evidence. As such, it has also come on record in her evidence that her grand-mother had asked the deceased regarding what happened and the deceased had stated the facts of incident to her grand-mother. Surprisingly, the mother of the deceased is not examined in this case.
It also reveals in the evidence of prosecution witness Kishorbhai Keshabhai that he saw Hansaben burning and shouting and he tried to extinguish the fire by throwing mattresses upon the deceased and he along with the accused No.1 tried to extinguish the fire and daughter of Hansaben had arrived at that time and at the time of incident, mother-in-law and father-in-law i.e. accused Nos.2 and 3 were not there. Now considering the evidence of the sole eye witness Ashaben coupled with the evidence of Kishorbhai Keshabhai, Ashaben has not stated that her father, accused No.1 Bharat Manga was trying to extinguish the fire with mattresses and Kishorbhai Page 10 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022 R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022 Keshabhai was also helping him. This is a contradiction between the evidence of Ashaben and Kishorbhai, which cannot be discarded and presence of Ashaben viewing the entire incident becomes doubtful in that aspect also and which makes the evidence of prosecution witness Ashaben unreliable.
12. It is also evidence of Ashaben that she along with her aunty, grand-parents had taken her mother to the hospital, whereas it has come on record through Dr.Girish Thakkar that accused No.1 had brought the deceased in the hospital. The Doctor has not stated that there were some other persons with the accused No.1.
13. In view of the above, the entire evidence of the so- called eye witness - sole eye witness and who is child witness, cannot be relied upon considering the evidence of the other witnesses, as the same is contradictory and there are major contradictions in her evidence. Her main contradiction is with respect to burning, and also her admission that she was playing in the street with her brother at the time of incident and she saw only her mother on fire. Therefore, it cannot be ruled out that she being minor child under the influence of her grand-parents and aunty must have been tutored and she has stated the facts which has not happened. Moreover, the deposition of the of the minor stating the reason of the incident is also shocking Page 11 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022 R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022 and surprising and how a girl of 12 years be able to know the motive of the alleged incident which has not come on record in any other evidence and hence it suggests that she is not reliable witness.
14. Gauriben Javerbhai has been examined as PW No.3 at Ex.24, who is aunty of Asha and sister of the deceased. Surprisingly, the reason of the incident which is known to Asha has not been said to this witness, who is residing nearby in the same area. This witness has stated some new things regarding harassment to her sister by all the accused. She has stated that she was called by Asha to accompany her. Surprisingly, Asha who has seen the incident as per her say, who is sole eye witness, has not stated anything to her aunty while calling her. As per Gauri, her sister told her regarding the incident and named the accused. In the cross examination it is admitted that her sister had started to live with the accused No.1. her relation with her sister was not good and she was not visiting her house.
15. Considering the evidence of Gauri, it has come on record that she is not eye witness to the incident. There was strain relation with her sister and the accused No.1 and family members of the accused No.1. The case of harassment has been brought for the first time, however, no complaint was made by her or her brother before the leader Page 12 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022 R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022 of the community. As such the evidence of Gauri, sister of the deceased also cannot be relied upon.
16. Kiritbhai Khodabhai - Panch witness of the scene of incident who is examined as PW No.4 at Ex.25 has stated regarding scene of incident in his examination-in-chief that there was kerosene cane, some mattresses, tin (dabba) and one match-box which was seized by the police.
In the cross examination it is submitted that his house and house of the deceased and accused No.1 are just opposite to each other and if any hue and cry arises in the house of accused No.1, he is able to hear. He has also seen the Primus Stove at the scene of offence. He has stated that he cannot say whether utensils were lying near Primus Stove. This witness is one of the member of the community. He is has stated that no complaint of harassment is given to the community. This is corroborative piece of evidence, which cannot be said to be substantive evidence. It is also clear that if he is neighbour just opposite the house of the deceased and if any incident of hue and cry happens in the house of the accused No.1, he can hear it, but he has not heard anything. Considering the evidence of the eye witnesses Asha and Gauri, which is substantial evidence. Panchnama of scene of offence relied upon by the learned APP cannot be said to be conclusive evidence.
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17. Crucial question is regarding dying declaration recorded by the Executive Magistrate and the complaint recorded by the PSI whether can be relied upon and considered as dying declaration.
18. Considering the evidence of Babubhai Jivaji Jadav - Executive Magistrate PW No.5 Ex.27, he has recorded dying declaration of the deceased. The reason of burning has been stated by the deceased which he has recorded. It is the duty of the investigating agency as well as the Executive Magistrate that in case of burn injury while recording dying declaration of burnt patient, only consciousness of the patient is not only to be seen but the mental state of affair of the patient as well as the orientation of the patient and whether the patient is mentally stable while answering the questions is also an important aspect which is to recorded by the Executive Magistrate and it is to be noted by the Doctor before recording dying declaration. Here in this case, it is clearly stated on record that he has only ascertained regarding consciousness of the patient but he has not taken care regarding mental condition of the patient. The Doctor has not asserted as to whether the patient was capable of giving answers properly and was in a stable condition of mind or not. It has not come on record in the examination- in-chief by the Executive Magistrate. While recording the dying declaration, the Executive Magistrate has not obtained endorsement of the Doctor regarding Page 14 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022 R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022 consciousness of the patient / deceased. As such, when the entire body of the patient was burnt and the patient had 100% burn injuries, mental condition of that patient was required to be ascertained, which is not done by the Executive Magistrate.
19. Moreover, considering the dying declaration, there are many erasers and cancellations in the dying declaration, which also creates doubt regarding genuineness of the dying declaration. As such, the dying declaration does not inspire confidence. Inspite of 100% burn injuries to the deceased and skin of the upper limbs and fingers were peeled of, thumb impression of the deceased has been obtained in the dying declaration, which also creates doubt and possibility of making false impression cannot be ruled out.
20. Manjariya, Police Sub Inspector who is examined at - Ex.30 PSI has stated that after recording the complaint, he sent yadi for dying declaration and he has also investigated the case, recorded statements of witnesses, panchnama was carried out by him and handed over the investigation to Mr.T.K. Patel, Police Inspector.
In his cross examination he has stated that the complaint was recorded between 4.05 p.m and 4.30 p.m. and after that Yadi for recording Dying Declaration was sent to the Executive Magistrate. The relatives of the deceased were standing near the deceased when the complaint was Page 15 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022 R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022 recorded. It is admitted by him that he has not taken any certificate of endorsement at the time of recording complaint as to whether the patient was conscious or not. Thumb impression has been obtained in the complaint, which is identified by one constable. As stated above when the patient had sustained 100% burn injuries and skin of the fingers was peeled of, the thumb impression of the deceased in the complaint is doubtful.
21. One more aspect which is to be seen is the evidence of the relative of the deceased present at the time of recording of the complaint. As such the genuineness of the complaint cannot be relied upon.
22. One more glaring aspect is regarding complaint and dying declaration, both are under the shadow of doubt. That as per the say of PSI Manjariya, Yadi was sent after recording the complaint. The complaint is recorded till 4.30 in the evening, whereas as per the say of the Executive Magistrate he received Yadi at 15.55 hours and he left for hospital and recorded dying declaration at 16,00 hours till 16.20 hours. Thus, the statement by the PSI and dying declaration by the Executive Magistrate have been recorded at the same time. Thus, there is conflict of time of both the authorities which creates doubt whether the complaint Ex.30 and dying declaration have been genuine or not. This doubt is not clarified by the prosecution.
Page 16 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022 As per the case of the prosecution, first statement of the deceased was recorded by Mr.Manjariya, PSI which can be said to be first dying declaration of the deceased and as per the admission of Mr.Manjariya, PSI, relatives of the deceased were standing besides the patient. If considering this aspect the complaint, which is recorded during 4.05 PM to 4.30 PM and as stated above, Yadi of dying declaration was sent to the Executive Magistrate after recording of the complaint, which is contrary to the evidence of the Executive Magistrate. The Executive Magistrate has stated in his evidence that he has recorded dying declaration from 4.00 PM till 4.20 PM. As such both the authorities were present together when the first statement by Mr.Manjariya, PSI and second by the Executive Magistrate was recorded and considering the admission by Mr.Manjariya, PSI that relatives of the deceased were present besides the patients, the same position would have been during the presence of the Executive Magistrate and when the patient was having 100% burns as per the say of the Doctor, skin of the finger being pilled off and no Doctor certified the mental condition of the deceased at the time of recording of the complaint and dying declaration except a printed line in the dying declaration signed by some Doctor, who has not been referred to by the Executive Magistrate. Both the statements of the deceased cannot be said to be voluntary and presence of the relatives of the deceased do cast a shadow of doubt on Page 17 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022 R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022 recording of these statements, which cannot be ruled out.
It is also on record that Yadi received by the Executive Magistrate on which as per the say of the Executive Magistrate, he has taken endorsement of the Doctor, does not reveal such endorsement except signature of some Doctor in a printed line regarding consciousness of the patient. There is nothing on record to suggest that the deceased was in fit condition of mind for recording of the dying declaration. Hence, the both the authorities cannot be said to be independent. Mr.Manjariya, PSI who has investigated the case and the Executive Magistrate who has recorded the dying declaration cannot be said to be independently recording the statement. It has come on record that the relatives of the deceased were present. Under the circumstances, the complaint recorded by Mr.Manjariya, PSI which is relied upon as a dying declaration and the dying declaration recorded by the Executive Magistrate at Ex.29 cannot be relied upon in view of the above circumstances.
It is cardinal principle of law in catena of decisions that dying declaration if found reliable, could form basis of conviction.
So far as the decision relied upon by the learned APP in the case of Sudhakar Vs. State of Madhya Pradesh, reported in (2012) 7 SCC 669 is not applicable to the facts of the present case. Considering the facts on hand and the Page 18 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022 R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022 evidence brought on record before the learned trial court, the prosecution has not clarified first declaration by the deceased before the Doctor Girish Thakkar in accidental case. In the case cited by the learned APP there was finding regarding fight between the deceased and accused before she suffered burn injuries. Besides this, the deceased who has stated in first statement regarding accident, had stated reason in the second declaration behind her making false statement.
Here in this case on hand, these are not the circumstances and in this case, the prosecution has not only relied upon the dying declaration and the complaint but also on the evidence of the eye witnesses and considering the deposition of the Executive Magistrate and in light of the evidence of the eye witness, dying declaration cannot be solely relied upon.
Even otherwise also, merely on the basis of the dying declaration, conviction cannot be awarded.
23. One witness of the incident Kishor Keshabhai has been examined at Ex.35. As per his say, he had given some money to accused No.1, on the day of incident when he was returning after eating to the house of Hansaben, he saw Hansaben was burning and shouting. As such he tried to extinguish the fire by throwing mattresses upon the deceased.
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24. In the cross-examination he has admitted that when he saw Hansaben burning, at that time, accused No.1 was also trying to extinguish the fire and his fingers were also burnt at that time and they both took the deceased to the hospital. It is also specifically stated in the cross examination that when they were trying to extinguish the fire, daughter of Hansaben had arrived and at the time of incident, daughter of Hansaben or son of Hansaben was not there, as well as mother-in-law, father-in-law i.e. accused Nos.2 and 3 were also not there. The evidence of Kishorbhai falsifies the evidence of so-called eye witness Ashaben. As per the say of Kishorbhai, only accused No.1 was there. He extinguished the fire, whereas Ashaben and Brother of the deceased had not arrived till the fire were extinguished.
25. As such, considering the evidence of prosecution, mainly evidence of prosecution witness Kishorbhai, presence of accused Nos.2 and 3 is also not on record. The presence of eye witness Ashaben is also not on record and the conduct of the accused No.1 helping to extinguish the fire also gets support.
26. One more aspect of the prosecution case is to be seen that is motive of the entire incident has not been clearly proved by the prosecution on record. As per the allegation against the accused what was the reason of setting the deceased at fire is not brought on record by the prosecution.
Page 20 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022 As per the case of the prosecution, there was dispute of money with Kishorbhai, which is not asserted by Kishorbhai. As stated above, motive of the incident is also not proved on record.
27. Considering the overall evidence on record, the evidence of so-called eye witnesses is not trustworthy and cannot be relied upon. The dying declaration recorded by the Executive Magistrate and the complaint recorded by the PSI, as stated above, both are recorded at the same time. No endorsement of the Doctor regarding consciousness is obtained by the PSI or the Executive Magistrate while recording dying declarations. The deceased had sustained 100% burns and her skin was pealed of and therefore also it cannot be believed that she can put her thumb impression on the complaint or dying declaration. Under the circumstances, the complaint and the dying declaration are not trustworthy.
28. All the aspects of the case has been considered by the trial court and the entire evidence has been rightly appreciated by the trial court and the findings recorded by the trial court is sound, cogent and convincing, which cannot be interfered with.
29. Considering the entire evidence on record oral as well as documentary, we are of the opinion that the prosecution Page 21 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022 R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022 has failed to prove the case against the accused by leading cogent and convincing evidence. The judgement delivered by the Sessions Judge is sound on the aspect of law and facts. The evidence brought on record by the prosecution before the trial court has been rightly appreciated by the trial court. No apparent error on the face of the record is found from the judgement. The judgement does not suffer any material defect or cannot be said to be contrary to the evidence recorded.
30. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. 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 Page 22 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022 R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022 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, (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 Page 23 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022 R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022 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 Page 24 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022 R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022 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 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 Page 25 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022 R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022 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."
31. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by Page 26 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022 R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022 the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.
32. Scope of appeal against acquittal is well laid down in case of Chandrappa and ors. vs. State of Karnataka reported in (2007) 4 SCC 415, it was observed:
"42. From the above decisions, in our considered view, the following general principles regarding powers of 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;
(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 Page 27 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022 R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022 conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Page 28 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022 R/CR.A/463/1995 JUDGMENT DATED: 07/10/2022 trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
33. Considering the aforesaid 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 out to interfere with the impugned judgment and order of acquittal.
34. In view of the above and for the reasons stated above, present Criminal Appeal deserve to be dismissed and is accordingly dismissed qua respondent No.1.
Sd/-
(S.H.VORA, J) Sd/-
(RAJENDRA M. SAREEN,J) R.H. PARMAR Page 29 of 29 Downloaded on : Fri Oct 07 21:12:09 IST 2022