Gujarat High Court
State Of Gujarat vs Dayaldas Vikramdas Salvani on 6 June, 2024
NEUTRAL CITATION
R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1013 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
DAYALDAS VIKRAMDAS SALVANI & ORS.
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Appearance:
MR DIVYANGNA JHALA for the Appellant(s) No. 1
HL PATEL ADVOCATES (2034) for the Opponent(s)/Respondent(s) No. 1,2,3
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
and
HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 06/06/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)
1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 31.07.1997 passed by the learned Sessions Judge, Panchmahal, At - Godhara in Sessions Case No.222 of 1993, whereby the respondents Page 1 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined herein - original accused came to be acquitted for the offences under Sections 332, 333, 186, 504, 426, 114 of Indian Penal Code and under Section 120 of the Bombay Police Act, the appellant - State has preferred present appeal under section 378 of the Code of Criminal Procedure, 1973 ("the Code" for short).
2. The brief facts of this case are as under.
The Original Complainant - PSI Mr. M. I. Shaikh was performing his duty as Traffic PSI near Ambika Cross road in Godhra on 23-7-93. On the day before, he had issued a Memo for a Mini Luxury Bus No. GJ-17-T- 321 near Godhra Town Police Chowki No. 8. At the time of the incident i.e. on 23-7-93 at about 10-15 hour, when he was preparing a Memo for Auto Rickshaw No. GJ-17- T-1556, accused Vasu Sindhi and Mukesh Sindhi arrived over there with a copy of the Memo, which he had issued on the previous day and started abusing him. As the altercation hiked, the complainant gave vardhi from his walkie-taklie set to send Motor Mobile No.1 immediately at Ambika Crossroad. Therefore, both the accused persons got into the rickshaw parked over there and while going, they stated that as long as RTO Page 2 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined Inspector Mr. Shah is posted at Godhra, his RTO Memo will not be effective. You may issue Memo; we will manage it. After saying this, they went away in rickshaw. Thus, as both the accused persons had caused hindrance in government duty, he immediately came to the Police Chowki No. 8 for lodging complaint. At that time, Police Head Constable Jivabhai Jalubhai, Police Constable Vinodchandra Chunilal, Telephone Duty Police Constable Arjunbhai Sardarbhai etc. were present at Chowki No. 8. In the meantime, accused persons Dayaldas Trikamdas, Vasu Sindhi and Mukesh Sindhi arrived at Police Chowki No. 8 and soon after arrival, they stated that 'Shaikh, why are you hiding inside and thereafter, all three of them started hurling filthy abuses and all three of them assaulted PSI Mr. Shaikh with fists and blows. As the accused Dayaldas raised the wooden ruler lying on the table to hit PSI Mr. Shaikh, Head Constable Jivabhai and Police Constable Vinodchandra present in the Chowki intervened to save. At that time, accused Dayaldas hit the ruler on the left eye part to Head Constable Jivabhai and hence, bleeding started. The watch of PSI Mr. Shaikh got broken in this scuffle and it fell on the ground. Moreover, as Telephone Page 3 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined Duty Police Constable Arjunbhai informed the Town Police Station through wireless in the meantime, the I/c. Police Inspector Mr. Navle arrived with Eagle Mobile Van. During this period, Mukesh and Vasu had escaped and accused Dayaldas was captured.
3. In pursuance of the complaint lodged by the complainant with Godhara Town Police Station for the offence under Sections 332, 333, 186, 504, 426, 114 of Indian Penal Code and under Section 120 of the Bombay Police Act, the investigating agency recorded statements of the witnesses, drawn panchnama of scene of offence, discovery for the purpose of proving the offence. After having found sufficient material against the respondents
- accused persons, charge-sheet came to be filed in the Court of learned the JMFC, Godhara. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Godhara as provided under Section 209 of the Code.
4. Upon committal of the case to the Sessions Court, Godhara, the learned Sessions Judge framed charge at Exh.2 against the respondents accused for the aforesaid Page 4 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined offences. The respondents accused pleaded not guilty and claimed to be tried.
5. In order to bring home charge, the prosecution has examined 6 witnesses and also produced various documentary evidences before the learned trial Court, more particularly described in para 8 of the impugned judgment and order.
6. On conclusion of evidence on the part of the prosecution, the learned trial court put various incriminating circumstances appearing in the evidence to the respondents - accused so as to obtain explanation/answer as provided u/s 313 of the Code. In the further statement, the respondents - accused denied all incriminating circumstances appearing against them as false and further stated that they are innocent and false case has been filed against them.
7. We have heard learned APP Ms. Divyangna Jhala for the appellant - State and learned advocate appearing for H.L.Patel Associates for the respondents and minutely examined oral and documentary evidence adduced before Page 5 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined the learned trial Court.
8.1. Learned APP Ms. Divyangna Jhala for the appellant
- State has submitted that prima-facie, the learned trial Court has committed error in acquitting the accused persons from the charges punishable under Sections 332, 333, 186, 504, 426, 114 of Indian Penal Code and under Section 120 of the Bombay Police Act. She has further submitted that from the records, it transpires that there is sufficient evidence available on the record by way of documentary evidences as well as oral depositions, which clearly support the case of the prosecution and the case of the prosecution is proved beyond reasonable doubt. She has further submitted that the learned trial Court has recorded the order of acquittal, which is ex-facie, bad in law and against the provisions of law and also by ignoring the evidences on record of the case and therefore, requires interference by this Court and also requires to be quashed and set-aside.
8.2. She has further submitted that the learned trial Court has failed to appreciate that the complainant Shri Makbul IftegarAhmed Shaikh was working as a Police Page 6 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined Sub Inspector at Godhara Traffic Branch at the relevant point of time and the respondents accused have given kicks and fists blows to the complainant during his office hours and the respondent accused no.1 has given blow of wooden scale and the injury is caused on left eye of the Head Constable Jeevabhai Jalubhai. This whole aspect clearly indicates that the respondents accused have acted in high handed manner and also have give abuses to the complainant and therefore, they were helping each other in committing the offence punishable under Sections 332, 333, 186, 504, 426, 114 of Indian Penal Code and under Section 120 of the Bombay Police Act.
8.3. She has further submitted that the learned trial Court has failed to appreciate that the respondents accused have committed the offence punishable under Sections 332, 333, 186, 504, 426, 114 of Indian Penal Code and under Section 120 of the Bombay Police Act by entering in Police Chowky No.8 and created disturbance in Government work. She has further submitted that the deposition of the complainant, which is also supported by the depositions of the Medical Officers - Dr.N.P.Patel and Dr.P.R.Bhatiya, was not Page 7 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined properly appreciated by the learned trial Court. She has further submitted that the Injury Certificates which are issued regarding injuries caused to Mr.Makbul IftegarAhmed Shaikh and Head Constable Mr.Jeevabhai Jalubhai by the concerned Medical Officer, were also not properly taken into consideration by the learned trial Court.
8.4. She has further submitted that the learned trial Court ought to have believed the evidence of the injured witness of the prosecution i.e. Mr.Jeevabhai Jalubhai. She has further submitted that the learned trial Court has not properly appreciated the fact that the complainant is the public servant serving in the Police Department and he has no reason to file such false complaint against the respondents accused and therefore, she submitted by taking this Court to the various depositions as well as the documentary evidences available on record and also referring to the findings of the learned trial Court that the trial Court has committed error in not properly appreciating the evidence available on record and more particularly, the prosecution has proved its case beyond reasonable doubt and Page 8 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined therefore, she prays that the present appeal requires interference by exercising the powers under Section 378 of the Criminal Procedure Code, 1973 against the judgment and order of acquittal passed by the learned Sessions Judge, Godhara in Sessions Case No.222 of 1993 on 31.07.1997 and by passing the appropriate order of conviction.
9. Per contra, learned advocate appearing for H.L.Patel Associates for the respondents has supported the judgment and order of acquittal passed by the learned trial Court and has submitted that the learned trial Court has not committed any error and no perversity or illegality is found from the judgment of acquittal passed by the learned trial Court. He has further submitted that the view taken in the impugned judgment by the learned trail Court is possible and plausible and therefore, no interference is called for against the judgment of acquittal. He has further submitted that the complainant being a Police Officer has tried to abuse the process of law by filing such false and frivolous complaint and the learned trial Court has rightly come to conclusion that such complaint itself is doubtful and Page 9 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined therefore, the learned trial Court has also not believed the story put up by the prosecution and has rightly acquitted the accused persons from the alleged offence. He has further submitted that the impugned judgment and order of acquittal passed by the learned trial court is just and proper and is in accordance with well settled proposition of law and nothing warrants interference by this Court as no case is made out to exercise the powers under Section 378 of the Code and therefore, he has prayed to dismiss the present appeal.
10. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the learned trial court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225). In the instant case, learned APP for the appellant has not been able to point out to us as to how the findings recorded by the learned trial court are perverse, contrary to material on record, palpably wrong, manifestly Page 10 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined erroneous or demonstrably unsustainable. 11.1. We have considered the submissions made at the bar and perused the materials available on the record. We have considered rival submissions made at the bar. We have also considered the fact that the complainant is one Shri Makbul IftegarAhmed Shaikh working as a Police Sub Inspector at Godhara Traffic Branch at the relevant point of time. As per the say of the complainant, the incident has taken place as he was giving a memo to the accused persons when they parked the auto rickshaw, which created nuisance to the traffic and at that point of time, the accused persons started abusing the complainant and memo was given to the accused persons on 22/07/1993. The said incident took place due to issuance of memo to one Mini Luxury Bus on 22/07/1993 and the accused persons were also threatening the complainant that since the R.T.O. Inspector who is serving at Godhara, is known to them, nothing can happen to the accused persons. Thereafter, they went in Auto rickshaw and as they have committed hindrance in discharging duty as Police Sub Inspector, the complainant came to the Police Chawky No.8 to Page 11 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined lodge the complaint. At that time, the accused persons namely Dayaldas Trikamdas, Vasu Sindhi and Mukesh Sindhi have come together in the Police Chawky and have started abusing the complainant and thereafter, they have started beating the complainant by giving fists and kicks blows. At that time, Constable Mr.Ganpatsinh, Home Guard Mr.Rajendrasinh and other persons tried to intervene. At that point of time, the accused Dayaldas has given the blow of wooden scale lying on the table and due to that blow, one Head Constable Jeevabhai Janubhai received injury in his eye and as per the say of the complainant, the chain of watch was also broken and thereafter, vardhy was given to the Town Police Station and thereafter, the offence was registered against the accused persons under Sections 332, 333, 186, 504, 426, 114 of Indian Penal Code and under Section 120 of the Bombay Police Act. Thereafter, the accused persons were arrested and thereafter, the charge was framed by the learned Sessions Court vide Exh.2.
11.2. Considering the charge and considering the fact that thereafter the complainant himself was examined by the prosecution at Exh.27 and as per the say of the Page 12 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined complainant, he has stated the story that when he was on duty, the incident has taken place. He is always having revolver with him as being the Police Sub Inspector. Normally, his revolver is remained loaded, the incident which is allegedly taken place initially on the road and thereafter, at the Police Chawky whereby the allegation is made that the accused persons have beaten the complainant, who is the Police Sub Inspector. It reveals from the deposition of the complainant that the complainant has neither resisted such assault nor tried to use the revolver in his defence nor tried to save himself. Such story that the incident has allegedly taken place in presence of other policemen and three persons coming from outside are beating the Police Sub Inspector, is totally non convincing and prima-facie found got up. It also reveals from the material available on the record that all the witnesses, who are examined by the prosecution, are from the Police Department and the doctors who are examined in support of the say of the Police are not qualified Ophthalmologist, who have given certificate. Dr.Prabhakar, who is examined at Exh.55 has given the Medical Certificate by indicating that he is working as a Medical Officer and he is not qualified Page 13 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined Ophthalmologist even then on the very first examination, he has given the certificate that the left eye of Jeevabhai Jalubhai is having injury and is visually 30% handicapped at present. It is clearly established from the Examination-In-Chief and Cross Examination that he is not an expert in giving such opinion though he is the Medical Officer and he is not having any qualification regarding Ophthalmology. Another Dr.Naranbhai Kunjabhai Patel was also examined at Exh.53. He has admitted that there is a correction in the date of the certificate and he has also specifically submitted that there is only complaint regarding blows given on forehead, face and on stomach by the complainant Shri Makbul IftegarAhmed Shaikh but there is no as such external injury found and considering the fact that there is a correction in the date of the certificate, nothing much comes out from the deposition of the witnesses in support of the case of the prosecution. The prosecution has also examined the witnesses at Exhibit 49 Shri Ganpatsinh Rathod, who was serving as a Police Constable in Traffic Branch. He is also trying to support the version given by the complainant Shri Makbul IftegarAhmed Shaikh and there is also the deposition of Page 14 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined Head Constable Shri Jeevabhai Jalubhai at Exhibit 51, who is allegedly having the injury in the left eye in the said incident. In his cross examination, he has narrated totally different story that he became unconscious when such incident took place, therefore he was not as such giving proper version even regarding receiving the blow of the wooden scale. He has not also revealed such fact in certain terms as to which part of the wooden scale was hit in the eye. Considering his deposition also, the case of the prosecution is not supported beyond reasonable doubt. The trial Court has discussed all these aspects in detail and more particularly para 18 onwards in the impugned judgment, the trail Court has found that the incident has taken place in two parts, in one part, the incident has taken place on the road and in another part, the incident has taken place in the Police Chawky. It is also reflected from the material available on the record that on the said day, in fact the Police Sub Inspector Shri M.I.Shaikh has called Dayaldas at the Police Chawky No.8 to settle the dispute pertains to the criminal case, which is filed by Dayaldas and actually, it is the case of Dayaldas that the P.S.I. has started abusing him and thereafter giving fist and kick Page 15 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined blows and when the P.S.I. was trying to beat him with the wooden scale, he tried to save himself and therefore, he has stretched his hands and at that point of time, one piece of wooden scale was broken from the scale and has hit on the eye of Jeevabhai. It also transpires from the medical papers available on the record that Dayaldas has also received the injury in his fingers of the hand. The defence which is put up by Dayaldas is possible one and the learned trial Court has also considered this aspect in its judgment. It is also found that the incident has taken place in presence of many Policemen and the complainant has filed the complaint that he was beaten by the accused persons. The Police Sub Inspector is always having the revolver with him and it is totally unbelievable story that three person could come in the Police Chawky and thereafter, gave fist and kick blows to such Police persons and more particularly, the Police Sub Inspector having revolver with him is not trying to save himself and not giving any counter attack. From the material available on the record, it transpires that some of the papers which are produced at Exh.20 are prayed to be de-exhibited under Section 162 of the Indian Evidence Act and the said application is filed Page 16 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined vide Exh.31 and the learned Sessions Court has rejected the said application by order dated 22.02.1996. The documents pertains to the cases, which are registered by the Police Sub Inspector, Traffic Branch, Godhara are also available on the record for the particular period whereby the complainant Shri M.I.Shaikh was serving as a Police Sub Inspector at the relevant point of time and the details about the cases registered by him and the vehicles detained by the Police Sub Inspector are also available on the record and the data showing the details about the vehicles of Hindu persons and Muslim persons are also produced pursuant to the complaint received by the Deputy Superintendent of Police about the improper behaviour of the complainant. That document also indicates about the background of the incident and conduct of the present complainant. In any case, there are many inconsistencies and contradictions found in the depositions of the complainant and other witnesses even the medical evidence is not supporting the case put up by the prosecution.
11.3. We are of the opinion that this case is classic case whereby the Police Officers are abusing its power. Page 17 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024
NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined If the citizens are not acting pursuant to their improper demand or if citizens are resisting such demands, then they are taking shelter by creating such improbable stories with the help of the subordinate officers. Even assuming that such incident has taken place, then also it seems that it is probable that the complainant himself being the Police Sub Inspector has called the accused persons as rightly put up the defence by the accused persons that they were called at the Police Chawky and they have been beaten by the Police Sub Inspector though they were called for some settlement of the dispute of the criminal case.
11.4. This is very alarming situation whereby some checks are required to be made and check and balance should be there on the powers when such erring officers are exercising their powers in improper and illegal manner with a view to harass any citizen. 11.5. It is fruitful to refer the provisions of Sections 332, 333, 186, 504, 426, 114 of Indian Penal Code and under Section 120 of the Bombay Police Act, as under : Page 18 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024
NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined "Section 332 in the Indian Penal Code, 1860:-
332. Voluntarily causing hurt to deter public servant from his duty.--
Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
"Section 333 in the Indian Penal Code, 1860:-
333. When accused appears to have been of sound mind.
- When the accused appears to be of sound mind at the time of inquiry or trial and the Magistrate is satisfied from the evidence given before him that there is reason to believe that the accused committed an act, which, if he had been of sound mind, would have been an offence, and that he was, at the time when the act was committed, by reason of unsoundness of mind, incapable of knowing the nature of the act or that it was wrong or contrary to law, the Magistrate shall proceed with the case, and, if the accused ought to be tried by the Court of Session, commit him for trial before the Court of Session.
Page 19 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024
NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined "Section 186 in the Indian Penal Code, 1860:-
186. Obstructing public servant in discharge of public functions.--
Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
"Section 504 in the Indian Penal Code, 1860:-
504. Intentional insult with intent to provoke breach of the peace.
--
Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
"Section 426 in the Indian Penal Code, 1860:-
426. Punishment for mischief.--
Whoever commits mischief shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.
Page 20 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024
NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined "Section 114 in the Indian Penal Code, 1860:-
114. Abettor present when offence is committed.--
Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.
"Section 120 of the Bombay Police Act :-
120 Wilful trespass - Whoever without satisfactory excuse wilfully enters or remains in or upon any dwelling house or premises or any land or ground attached thereto, or on any grounds, building, monument or structure belonging to Government or appropriated to public purposes, or on any boat or vessel, shall, on conviction, whether he causes any actual damage or not, be punished with fine which may extend to [five thousand rupees].
11.6. It is also relevant to refer the provisions of Section 378 of the Code, as under:
"Section 378 in The Code of Criminal Procedure, 1973:-
378. Appeal in case of acquittal.
[(1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5),-
(a) the District Magistrate may in any case, direct the Public Prosecutor to present an appeal to the Court of Page 21 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined Session from an order of acquittal passed by a Magistrate in respect of a cognisable and non-bailable offence;
(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause(a)] or an order of acquittal passed by the Court of Session in revision.] (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, [the Central Government may subject to the provisions of sub-Section (3), also direct the Public Prosecutor to present an appeal-
(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognisable and non-
bailable offence;
(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision. (3) No appeal to the High Court] [Substituted by Act 25 of 2005, Section 32, for "No appeal" (w.e.f. 23-6-2006).] under Page 22 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.
(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant and sixty days in every other case, computed from the date of that order of acquittal.
(6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2)." 11.7. In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280, Supreme Court has held as under:
"The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions Page 23 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."
11.8. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned 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 Page 24 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined belief that if it had been the trial court, it might have taken a different view.
11.9. Scope and interference by the appellate Court in acquittal appeal is very limited. The Hon'ble Privy Council has discussed the scope and interference in acquittal appeal in the case of Sheo Swarup v. King Emperor, AIR 1934 PC 227 and held as under:-
"While dealing with an appeal against acquittal, the High Court should and will always give proper weight and consideration to such matters as-
(1) the views of the trial Judge as to the credibility of the witnesses;
(2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial;
(3) the right of the accused to the benefit of any doubt;
and the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."
11.10. Further, considering the law laid down in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka, reported in 2024 SCC OnLine SC 561, every criminal trial starts with general presumption and one of Page 25 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined the cardinal principle of criminal jurisprudence is that, there is a presumption of innocence in favour of the accused, unless proven guilty. Burden of proving the case of the prosecution always rests on the shoulder of the prosecution. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence, which gathers strength before the appellate Court.
11.11. It is also relevant to note that the Hon'ble Apex Court has time and again considered the aspect of consideration of appeal against the order of acquittal under the provisions of Section 378 of the Code and interference by the higher Court, and exercise of such power is well established by the recent judgment of the Hon'ble Apex Court in the case of Mallappa and Others vs. State of Karnataka reported in (2024) 3 SCC 544, and the entire law has been discussed in paragraph Nos.25 to 46, as under:
"25. We may firstly discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in Page 26 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.
26. No doubt, an order of acquittal is open to appeal and there 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.
27. 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 Page 27 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined 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 eyes of law.
28. In Selvaraj v. State of Karnataka, "
13. Considering the reasons given by the trial court and on appraisal of the evidence, in our considered view, the view taken by the trial court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [(2002) 9 SCC 639] has laid down that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus:
"9. ...We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the Page 28 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal."
(emphasis supplied)
29. In Sanjeev v. State of H.P., the Hon'ble Supreme Court analyzed the relevant decisions and summarized the approach of the appellate Court while deciding an appeal from the order of acquittal. It observed thus:
"7. It is well settled that:
7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with, in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka5, Anwar Ali v. State of H.P.6) 7.2. With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P.7) 7.3. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala8)"
39. Pertinently, the Trial Court had reached its decision after a thorough appreciation of evidence and we have no doubt in Page 29 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined observing that the view taken by the Trial Court was indeed a legally permissible view. The High Court went on to reverse the decision by taking its own view on a fresh appreciation of evidence. Moreover, the High Court did so without recording any illegality, error of law or of fact in the decision of the Trial Court. In our considered view, the same was not permissible for the High Court, in light of the law discussed above. Setting aside an order of acquittal, which signifies a stronger presumption of innocence, on a mere change of opinion is not permissible. A low standard for turning an acquittal into conviction would be fraught with the danger of failure of justice.
40. So far as the question of independent appreciation of evidence by the High Court is concerned, be it noted that the High Court was fully empowered to do so, but in doing so, it ought to have appreciated the evidence in a thorough manner. In the present case, the High Court has not done so. Even the aspects discussed by the Trial Court have not been fully addressed and the High Court merely relied on a limited set of facts to arrive at a finding. The factors which raised reasonable doubts in the case of the prosecution were ignored by the High Court. For instance, the contradictions pertaining to time, which were carefully analyzed by the Trial Court, were not examined by the High Court at all. Similarly, the contradictions qua the nature of injuries were also not discussed. In an appeal, as much as in a trial, appreciation of evidence essentially requires a holistic view and not a myopic view. Appreciation of evidence requires sifting and weighing of material facts against each other and a conclusion of guilt could be arrived at only when the entire set of facts, lined together, points towards the only conclusion of guilt. Appreciation of partial Page 30 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024 NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined evidence is no appreciation at all, and is bound to lead to absurd results.
41. A word of caution in this regard was sounded by this Court in Sanwat Singh v. State of Rajasthan, wherein it was observed thus:
"9. The foregoing discussion yields the following results : (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case [LR 61 IA 398] afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and (iii) "strong reasons", are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified."
(emphasis supplied)
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: Page 31 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024
NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined
(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.
11.11. In view of the above decision, we find that the view taken by the learned trial court, while acquitting the accused persons is possible view. The findings given by the learned trial court are found just and proper as there is no error or perversity in the findings given by the learned trial court, and the learned trial court has properly appreciated the materials available on record. Page 32 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024
NEUTRAL CITATION R/CR.A/1013/1997 JUDGMENT DATED: 06/06/2024 undefined 11.13. 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 as the learned trial court has rightly given the cogent and convincing reasons for acquitting the present respondents - original accused.
12. In view of the above and for the reasons stated above, present Criminal Appeal deserves to be dismissed and is, accordingly, dismissed.
13. Record and Proceedings be sent back forthwith to the concerned trial court. Bail and bail bond, if any, stands cancelled. Surety also, if any given, stands discharged.
(SANDEEP N. BHATT,J) (J. C. DOSHI,J) MOHMMEDSHAHID Page 33 of 33 Downloaded on : Tue Jun 11 20:39:11 IST 2024