State Of Gujarat vs Ahir Hamirbhai Mulubhai on 1 February, 2023

[Cites 51, Cited by 0]

Gujarat High Court

State Of Gujarat vs Ahir Hamirbhai Mulubhai on 1 February, 2023

Bench: Vipul M. Pancholi

                                                                                      NEUTRAL CITATION




      R/CR.A/625/1996                                 JUDGMENT DATED: 01/02/2023

                                                                                       undefined




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 625 of 1996

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI                                 Sd/-

and

HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK                              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 ?

================================================================
                                STATE OF GUJARAT
                                      Versus
                        AHIR HAMIRBHAI MULUBHAI & 2 other(s)
================================================================
Appearance:
MS JIRGA JHAVERI AGP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 3
MR EKANT G AHUJA(5323) for the Opponent(s)/Respondent(s) No. 1,2
================================================================

    CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
          and
          HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                                  Date : 01/02/2023

                                 ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK) Page 1 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined

1. The appellant - State of Gujarat has preferred the present appeal under Section 378 of Criminal Procedure Code, 1973 against the judgment and order of acquittal dated 20.5.1996 passed by the learned Additional Sessions Judge, Bhavnagar (hereinafter be referred to as "the trial Court") in Sessions Case No. 186 of 1995, whereby the respondents-

original accused were acquitted from the charges levelled against them under Sections 302, 324, 326, 34 etc. of the Indian Penal Code and Section 135 of the Bombay Police Act.

2. It appears that during the pendency of present appeal, respondent No.3 - original accused No.3 -Ahir Malabhai Mulubhai has expired on 25.8.2019 and therefore, this Court passed order dated 29.4.2022, abating present appeal qua said respondent No.3- original accused No.3 - Ahir Malabhai Mulubhai.

3. Present appeal came to be admitted vide order dated 30.10.2006, which reads as under:-

"Leave granted. Appeal admitted. Bailable warrant in the sum of Rs.5000/- with one surety in the like amount to be issued against each of the respondent-accused. The trial Court is directedto prepare the paper book and forward the same to this Court on or before 31st August, Page 2 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined 1997 and the matter to be placed thereafter on final hearing board immediately."

4. It is contended by the appellant that the respondents -

accused were charged and tried by the trial Court in the said Sessions Case for the offences punishable under Sections 302, 324, 326, 34 etc. of the Indian Penal Code and Section 135 of the Bombay Police Act, wherein at the end of trial, by the impugned judgment and order dated 20.5.1996, the trial Court was pleased to acquit the respondents - accused. It is the contention of the appellant that the judgment and order of acquittal is against the law and evidence on the record of the case and the trial Court has not properly appreciated the evidence available on record. It is the further contention of the appellant that the trial Court has committed an error in not considering the evidence of the witnesses, who have supported the case of the prosecution and they have narrated the incident in detail about the role played by the accused-

persons. It is also the contention of the appellant that the prosecution has proved its case beyond reasonable doubt and, therefore, the respondents - accused ought to have been convicted for the offences with which they were charged.

According to the appellant, the entire evidence has not been Page 3 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined properly appreciated by the trial Court below and, therefore, the acquittal order is illegal. It is prayed by the appellant to set aside the impugned judgment and order of acquittal.

5. The facts in brief giving rise to the filing of present appeal are as under:

5.1 On 29.6.1995 at about 17.50 O'clock evening, in the sim of village Gundarana, when the complainant and his uncle namely Rajabhai Samantbhai (deceased) came out from the machinery room near farm, at that time, the accused - persons came there with weapons. Accused No. 1 had given blow of knife at back side of the deceased and accused No.3 had given two blows of sticks on the deceased. Due to this incident, the uncle of the complainant namely Rajabhai Samantbhai died and the complainant also received injuries on his forehead.

Accused No.1 had given blow of knife and accused No.2 had given blow of Axe on the forehead of the complainant.

5.2 Thereafter, on 29.6.1995 complaint was given by the complainant - Kalubhai Visabhai Ahir, at Mahuva Police Station and the same has been registered at Mahuva Police Station as I-C.R. No.25 of 1995.

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6. Pursuant to the aforesaid FIR, the police started investigation and prepared panchnama of the scene of offence, panchnama of the body of the injured, recovery panchnama, and seized muddamal articles. After completion of investigation, as the sufficient evidence was found, the police has filed the charge-sheet against the accused persons before the Judicial Magistrate, First Class. As the offence was triable by the Court of Sessions, the Judicial Magistrate, First Class has committed the case under Section 209 of the Criminal Procedure Code to the Court of Sessions at Bhavnagar, wherein it has been registered as Sessions Case No.186 of 1995.

7. The charge came to be framed by the trial Court on 4.3.1996 vide Exhibit 2 for the aforesaid offences against the accused. On being explained it to them, the accused persons have denied having committed any offence. The accused persons pleaded not guilty to the charge and pleaded for trial and hence, the case was tried by the trial Court.

8. It appears from the records that to prove the case, the prosecution has examined in all eleven witnesses includes panchas, independent witnesses, doctors and police officers, which are as under:-

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NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined P.W. No. Witness Exhibit No. 1 Dr. Viththalbhai Haribhai 13 2 Kalubhai Visabhai 33 3 Vihabhai Samatbhai 35 4 Kanabhai Ranabhai 36 5 Dr. Girdharlal Vallabhbhai 38 6 Jethabhai Hirabhai Katariya 41 7 Jeevabhai Sadulbhai 43 8 Palabhai Rajabhai 45 9 Gobar Kana 47 10 Umarbhai Valibhai (Head Constable) 49 11 P.S.I. Vaghela 54

9. The prosecution has also relied upon and referred to the documentary evidence which includes the copies of the postmortem report, various panchnamas and complaint etc., which reads as under:-

    Sr. Document                                                         Exh.
    No.
     1.    Yadi sent by Mahua Medical Unit to Mahua                        14
           Police Station.
     2.    Yadi sent by Mahua Police Station to Officer                    15
           of Medical Unit for postmortem.
     3.    Inquest Panchnama of the dead body.                             16
     4.    Yadi by Mahuva Medical Unit to Junagadh                         17
           FSL for sending blood samples.
     5.    Receipt for handing over the dead body.                         18
     6.    Panchnama of recovery of cloths and blood                       19
           samples for the deceased.
     7.    Letter by police to Medical Officer, Mahuva,                    20

for taking blood sample of the accused.

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8. Yadi for sending blood samples of accused 21, 22, nos.1, 2 and 3 to FSL. 23

9. Panchnama of blood samples of the accused. 24 10. Letter to FSL, Junagadh, to examine the 25 sample.

11. Receipt of muddamal received by FSL, 26

Junagadh.

12. Letter to Circle Inspector, Mahuva for 27

preparing map of the place of incident.

13. Covering letter written by Circle Inspector, 28 Mahuva, along with the map to PSI, Mahuva.

14. Analysis report of muddamal by FSL, 29

Junagadh, along with outward report.

15. Original report of FSL, Junagadh. 30 16. Serological report. 31

10. After closure of the evidence, the statements of the accused under section 313 of the Criminal Procedure Code, 1973 have been recorded wherein they denied of having committed any offence and have stated that they are innocent.

11. After hearing both sides and considering the evidence on records, the trial Court by impugned judgment and order has acquitted the accused persons from all the charges levelled against them.

12. Being aggrieved by and dissatisfied with the aforesaid judgment and order of acquittal the appellant - State of Gujarat has preferred this Appeal.

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13. We have heard Ms. Jirga Jhaveri, learned Additional Public Prosecutor for the appellant - State of Gujarat and Mr. Ekant Ahuja, learned advocate for the respondents at length.

14. Ms. Jhaveri, learned Additional Public Prosecutor for the appellant - State of Gujarat has submitted that though there is prima facie material found against all the accused persons, the trial Court has not believed case of the prosecution while passing impugned judgment and order of acquittal. Learned APP has further contented that though prima facie involvement of the accused persons is established in the offence beyond reasonable doubt, injury caused to the deceased is also supported by the experts evidence, the weapon which has been used in the commission of crime found with the blood-stain which has supported by Serological report as well as the prosecution witness has fully supported the case of the prosecution, trial Court while passing the judgment and order of acquittal has committed serious error of law and fact and therefore, the judgment and order of acquittal deserves to be quashed and the respondents original accused may be held guilty for the commission of offence.

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15. Per contra, Mr. Ekant Ahuja, learned advocate for the respondents has submitted that there is serious lacuna in the case of the prosecution, which creates serious doubt. He further submitted that the trial court has not committed any error while passing the impugned judgment and order of acquittal. He submitted that there is serious discrepancy in the evidence of so called eye-witness and the injured eye-

witness, which leads to the conclusion held by the trial Court that the prosecution has not proved the case against present respondents original accused persons beyond reasonable doubt and therefore, no interference is required to be called for. He further contended that lodging of FIR at very belated stage, creates serious doubt and therefore, learned trail Court has relying and appreciating this evidence in its true and proper spirit and passed impugned judgment and order of acquittal. Learned advocate for the respondents submitted in view of the aforesaid facts, this Court may not interfere with the impugned judgment and order of acquittal.

16. Mr. Ahuja, learned advocate for the respondents has relied upon the decision of the Hon'ble Apex Court in the case of Mahindra vs. Sajjan Galpha Rankhamb reported in AIR 2017 SC 2397, wherein it has been held that:-

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NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined "11. Keeping in mind the aforesaid position of law, we shall now examine the arguments advanced and materials on record to see whether the findings of the High Court call for interference in the facts and circumstances of the present case.

We have noticed that there are contradictions in the depositions of PW-4 and PW-10 and none of them is eye- witness to the alleged incident. Furthermore, PW-20 has proved in his deposition that he medically examined respondent Nos.1 & 2 herein on 21.04.2007 and not on 22.04.2007 when they were arrested. It is a matter of surprise to us that prosecution had not examined one Sanjay Jetithor in whose field the alleged incident occurred.

12. Non-examination of this material witness, who could have unfolded the relevant facts of the case necessary for adjudication, makes the prosecution version doubtful. It is also pertinent to mention here that PW- 3, who is an alleged eye-witness to the incident, had in his deposition admitted that he passed the information on phone to one Chandrakant Pandurang Gophane who was never examined by the Trial Court. After perusing the deposition of PW-3, we have noticed that this witness and the respondent accused were not in cordial terms as their cattle used to enter the fields of one another and chapter case was filed against the wife of accused on that count.

13. On perusal of the record, it has further been noticed by us that there was six days' delay in lodging the FIR which remained unexplained throughout the trial and in the appeal before the High Court. One last fact which is imperative and crucial to be mentioned here is that opinion on the cause of injuries was neither mentioned by doctor PW-6 in his deposition, nor in post-mortem report. In criminal cases pertaining to offences against human body, medical evidence has decisive role to play. A medical witness who performs a post-mortem examination is a witness of fact though he also gives an opinion on certain aspects of the case. This proposition Page 10 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined of law has been stated by this Court in Smt. Nagindra Bala Mitraand Vs. Sunil Chandra Roy & Anr., 1960 SCR (3) 1, as follows:

"The value of a medical witness is not merely a check upon the testimony of eye witnesses; it is also independent testimony because it may establish certain facts quite apart from the other oral evidence. If a person is shot at a close range, the mark of tattooing found by the medical witness would draw that the range was small, quite apart from any other opinion of his. Similarly, fractures of bones, depth and size of the wounds would show the nature of the weapon used. It is wrong to say that it is only opinion evidence; it is often direct evidence of the facts found upon the victim's person."

16. Furthermore, looking at the facts and circumstances of this case, we have noticed that PW-3 the eye-witness to the incident has neither stated as to when the accused came with alleged weapons nor he extended any help to the deceased. Rather he fled away from the spot as per his deposition, and came to know about the death of the deceased in the evening. This peculiar fact of the case completely over-rides the direct evidence rule, because ultimately probabilities creating doubts with respect to the cause and modus-operandi of offence increases when alleged eye-witness flee away from the place of occurrence. Where the medical evidence is such that it does not give any clear opinion with respect to the injuries inflicted on the body of victim or deceased, as the case may be, the possibilities that the injuries might have been caused by the accused are also ruled out. Such medical evidence is also very important in assessing the testimony of eye- witnesses and in determining whether the testimony of eye-witnesses can be safely accepted. Moreover, it is settled law of criminal jurisprudence as has been recognized by this Court in State of U.P. Vs. Krishna Gopal, (AIR 1988 SC 2154) (supra) that "A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt." After meticulously scrutinizing the Page 11 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined facts and circumstances of the present case, and keeping in mind the proposition of law as observed in Yogesh Singh Vs. Mahabeer Singh & Ors. (air 2016 SC 5160) (supra), we are of the considered opinion that there are not only actual but substantial doubts as to the guilt of the respondents herein. We are, therefore, unable to find any evidence as to how the deceased was killed and by whom. The unfortunate man succumbed to injuries but the substantial doubts, mentioned above, confer a right upon the accused-respondents to be held not guilty.

17. Thus, we see no reason to interfere with the findings of the High Court as, in our opinion, the High Court after correct appreciation of evidence has rightly acquitted the accused-respondents, giving them benefit of doubt. This appeal is devoid of any merit which is, accordingly, dismissed.

16.1 Learned advocate for the respondents has further relied upon the decision of this Court in case of State of Gujarat vs. Samuben Wd/o Bhoghabhai passed in Criminal Appeal No. 567 of 1995, more particularly he relied on paragraph No. 7 which reads as under:-

7. Before adverting to the facts of the case, it would be worthwhile to refer to the scope in acquittal appeals. It is well settled by catena of decisions that an appellate Court has full power to review, re-appreciate and consider the evidence upon which the order of acquittal is founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice in favour of the accused, firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the Page 12 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined accused having secured his acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court.

7.1 Further, if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrive at would not be arrived at by any reasonable person, and therefore, the decision is to be characterized as perverse.

7.2 Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. That the duty is cast upon the the appellate Court, in such circumstances, re- appreciate the evidence to arrive to just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged.

7.3 In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, (2019) 2 SCC 752, the Apex Court has observed that, "The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court.

Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out Page 13 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined criminal trial are not again unnecessarily dragged to the High Court".

7.4 Yet in another decision in Chaman Lal v. The State of Himachal Pradesh, rendered in Criminal Appeal No. 1229 of 2017 on 03.12.2020, 2020 SCC OnLine SC 988 the Apex Court has observed as under:

"9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC

189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:

12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law.

Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445)

13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) "... the High Court should and will always give proper weight Page 14 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755)

15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under:

(SCC p. 432, para 42) "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(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 Page 15 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."

18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;

(ii) The High Court's conclusions are contrary to evidence and documents on record;

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(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

(v) This Court must always give proper weight and consideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal." A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.

19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."

9.2 When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under:

"20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4 SCC 635, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE 1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC Page 17 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P (2009) 10 SCC 636)."

(emphasis supplied) 9.3 It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. 9.4 In the recent decision of Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436, this Court again had an occasion to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under:

"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on re- appreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p. 233)

"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case."

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NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined 31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on re- appreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416) "8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well- considered judgment duly meeting all the contentions raised before it. But then will this non- compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be Page 19 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case."

31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge. 31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under: (AIR pp. 80910) "5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our Page 20 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 Cr.P.C came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order. It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well- established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.

31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."

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17. We have perused the judgment and order of acquittal rendered by the trial Court and carefully considered the rival contentions, evidence and material placed on record.

18. Regarding scope of power of the appellate court in an appeal against the order of acquittal, it has been observed by the Apex Court in the case of Motiram Pandu Joshi and others Vs. State of Maharashtra, reported in (2018) 9 SCC 429 especially in paragraph nos.22 to 24 as under:-

22. It is fairly well-settled that in an appeal against the order of acquittal, the appellate court would be slow to disturb the findings of the trial court which had the opportunity of seeing and hearing the witnesses. In an appeal against the order of acquittal, there is no embargo for reappreciating the evidence and to take a different view; but there must be strong circumstances to reverse the order of acquittal.

In the appeal against the order of acquittal, the paramount consideration of the appellate court should be to avoid miscarriage of justice.

23. While considering the scope of power of the appellate court in an appeal against the order of acquittal, after referring to various judgments, in Chandrappa v. State of Karnataka, [10 (2007) 4 SCC 415] this Court summarised the principle as under: (SCC p. 432, para-42).

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

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NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined (1) An appellate court has full power to review, reappreciate and re-consider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(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."

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24. In Kallu v. State of M.P. [(2006) 10 SCC 313], this Court held as under: (SCC pp.317-18, para-8) "8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further, if it decides to interfere, it should assign reasons for differing with the decision of the trial court."

19. While appreciating the evidence and exercising the power under Section 378 of the Criminal Procedure Code, the duty cast upon the High Court regarding the scope and ambit of interference in acquittal appeal by the Hon'ble Supreme Court. It is worthwhile to refer to the decision of the Hon'ble Supreme Court in the case of Nagabhushan Vs. State of Karnataka reported in (2021) 5 SCC 222. The relevant paragraphs of the said decision in the case of Nagabhushan (supra) reads as under:-

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NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined "7.2 Before considering the appeal on merits, the law on the appeal against acquittal and the scope and ambit of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal is required to be considered.

7.2.1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189, this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under: (SCC pp. 196-99) "12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law.

Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 Page 25 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445)"

13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42) "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

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NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 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."

16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing Page 27 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that:

(SCC p. 374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."

(ii) The High Court's conclusions are contrary to evidence and documents on record;

(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

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(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

(v) This Court must always give proper weight and consideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal."

A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.

7.3 In the case of Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436, this Court again had an occasion to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under:

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NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined "31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on re-

appreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p. 233) "10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case."

31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on re-appreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal Page 30 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416) "8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified;

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NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case."

31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under:

(AIR pp. 809-10) Page 32 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined "5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 CrPC came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order. It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v.

State AIR 1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.

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NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined 31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."

20. It is also worthwhile to refer to the decision of the Hon'ble Supreme Court in the case of Rajesh Prasad Vs. State of Bihar and another reported in (2022) 3 SCC 471.

The Hon'ble Supreme Court in the said decisions has held and observed in paragraphs No.21 to 30 as under:-

"21. Before proceeding further, it would be useful to review the approach to be adopted while deciding an appeal against acquittal by the trial court as well as by the High Court. Section 378 of the Cr.P.C deals with appeals in case of acquittal. In one of the earliest cases on the powers of the High Court in dealing with an appeal against an order of acquittal the Judicial Committee of the Privy Council in Sheo Swarup vs. R. Emperor, AIR 1934 PC 227(2) considered the provisions relating to the power of an appellate court in dealing with an appeal against an order of acquittal and observed as under: (SCC OnLine PC) "16. It cannot, however, be forgotten that in case of acquittal, there is a 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 should be Page 34 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court.

"...But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice."

It was stated that the appellate court has full powers to review and to reverse the acquittal.

22. In Atley vs. State of U.P., AIR 1955 SC 807, the approach of the appellate court while considering a judgment of acquittal was discussed and it was observed that unless the appellate court comes to the conclusion that the judgment of the acquittal was perverse, it could not set aside the same. To a similar effect are the following observations of this Court speaking through Subba Rao J., (as His Lordship then was) in Sanwat Singh vs. State of Rajasthan, AIR 1961 SC 715 (Sanwat Singh case, AIR pp 719-20 para 9):

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NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined "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 afford a correct guide for the appellate court's approach to a case 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."

The need for the aforesaid observations arose on account of observations of the majority in Aher Raja Khimavs. State of Saurashtra, AIR 1956 SC 217 which stated that for the High Court to take a different view on the evidence "there must also be substantial and compelling reasons for holding that the trial court was wrong."

23. M.G. Agarwal vs. State of Maharashtra, AIR 1963 SC 200 is the judgment of the Constitution Bench of this Court, speaking through Gajendragadkar, J. (as His Lordship then was). This Court observed that the approach of the High Court (appellate court) in dealing with an appeal against acquittal ought to be cautious because the presumption of innocence in favour of the accused "is not certainly weakened by the fact that he has been acquitted at his trial."

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24. In Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793, Krishna Iyer, J., observed as follows: (SCC p.799, para 6) "6......In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."

25. This Court in Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225, spoke about the approach of the appellate court while considering an appeal against an order acquitting the accused and stated as follows:

(SCC p.229, para 7) "7.....While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only- reappraise the evidence to arrive at its own conclusions."

The object and the purpose of the aforesaid approach is to ensure that there is no miscarriage of justice. In another words, there should not be an acquittal of the guilty or a conviction of an innocent person.

26. In Ajit Savant Majagvai vs. State of Karnataka, (1997) 7 SCC 110, this Court set out the following principles that would regulate and Page 37 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined govern the hearing of an appeal by the High Court against an order of acquittal passed by the Trial Court: (SCC pp. 116-17, para 16) "16. This Court has thus explicitly and clearly laid down the principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial court. These principles have been set out in innumerable cases and may be reiterated as under:

(1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction.

(2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse.

(3) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial court that the accused is entitled to acquittal.

(4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court.

(5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another Page 38 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined view which can be reasonably taken, then the view which favours the accused should be adopted.

(6) The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness box.

(7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused."

27. This Court in Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225 observed vis--vis the powers of an appellate court while dealing with a judgment of acquittal, as under:

(SCC p.229, para 7)) "7.... While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only-reappraise the evidence to arrive at its own conclusions."

28. This Court in Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC 415, highlighted that there is one significant difference in exercising power while hearing an appeal against acquittal by the appellate court. The appellate court would not interfere where the Page 39 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined judgment impugned is based on evidence and the view taken was reasonable and plausible. This is because the appellate court will determine the fact that there is presumption in favour of the accused and the accused is entitled to get the benefit of doubt but if it decides to interfere it should assign reasons for differing with the decision of acquittal.

30. In Nepal Singh vs. State of Haryana- (2009) 12 SCC 351, this Court reversed the judgment of the High Court which had set aside the judgment of acquittal pronounced by the trial court and restored the judgment of the trial court acquitting the accused on reappreciation of the evidence.

21. It is well settled by catena of decisions that the Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.

However, Appellate Court 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.

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22. Further, 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. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below.

However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged.

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23. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.

24. At the first instance, We have noticed that the injured witness, before the concerned doctor of Mahuva, has not given names of any of the assailants, though they are inter related. Further, in the history recorded by the concerned doctor, the injured witness has categorically mentioned that the assault by somebody and after belated stage, before the investigating officer who has recorded the FIR, the said witness has given names of three assailants, which suggests serious doubt. Further, considering the relationship between the accused and the deceased, there are all likelihood that the present respondents original accused were roped in the Page 42 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined present incident. We have also noticed that there are serious discrepancies in the investigation. Likewise, the place of occurrence shown by the injured eye-witness and the panchnama of the place of occurrence is not corroborated, as per the say of the eye-witness. Even, the recovery is not proved under Section 27, as the panchas of the panchanama of recovery has not supported the case of the prosecution.

Merely the serological report supports that the blood-stains were found on the incriminating knife does not reveal that the witness has not supported the panchnama. Therefore, the trial court has rightly observed in paragraph No. 17 and dealt with the the same in its true and proper spirit. Further, the injured eye-witness has alleged that on the back of the deceased, the accused No. 2 has inflected single knife blow. However, considering the injury caused to the deceased and considering the panchnama of the place of occurrence, as alleged by the injured eye-witnesses that they are coming behind them and from the back side they have assaulted, the story put forward by the prosecution is not supported and it is contrary to the medical evidence. It is serious lacuna on the part of the prosecution that as per the case of the prosecution, the eye-

witness got injury on head by the knife and on the reverse Page 43 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined side by the Axe on the head and lot of blood-stains found on the body of injured eye-witness, at the same time, the clothes of the injured witness were not collected during the course of investigation and it was not sent to the forensic laboratory for examination. On the contrary, the investigating officer has clearly stated before the trial Court, on oath, that there was no blood-stains found on the clothe of the injured eye-witness.

It is relevant to note herein that the history given before the doctor, in first point of time, where the injured eye-witness has not named any of the assailants, though he knew all the three assailants and they are inter related and subsequently, before the investigating officer who recorded the FIR, he has given names of the assailants- persons. Therefore, the observations with regard to manipulation on the part of the injured persons to involve present respondents accused in serious offence of murder creates serious doubt and it is story put forward by the prosecution. It is also noted that p.w. 3 Vihabhai Samarth Ex. 35 who is brother of the deceased and father of the injured eye-witness has also mentioned before the doctor that his brother was assaulted by some unknown persons and therefore, there are all probabilities and likelihood that present respondents are roped in the serious Page 44 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined offence of murder. Therefore, the impugned judgment and order passed by the learned Trail Court is in consonance with settled legal principle. The trial Court has in paragraph Nos.

14 to 18, while appreciating the evidence, has very well discussed the said aspect. Though, learned APP has strongly relied on the serological report, it is mentioned that the blood was found on the weapon namely knife but at the same time, it also noted that blood group of the accused No. 2 is also having same blood group of the deceased. Therefore, prima facie it cannot be said that blood stain found from the incriminating weapon is of the deceased only and therefore, relying upon only this piece of evidence, the prosecution cannot prove charge levelled against respondents original accused. As there is no any other independent materials or evidence which lead the Trial Court to the conclusion that only and only accused persons have committed crime, as there is serious infirmity in the investigating carried out by the investigating agency, as there is serious discrepancy and the contradiction in the deposition of the witnesses and more particularly p.w. 2 and 3, (who are relatives of the deceased and therefore, they are interested witnesses) and as the relationship between the accused persons and the family of Page 45 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined the deceased is not good, therefore there are all probability and likelihood that the assailants - respondents herein are roped in the serious offence of murder of Rajabhai Samatbhai and in the offence of injury to the injured eye-witness and as the same is not proved beyond reasonable doubt by the prosecution, the trial Court has not committed any error in passing the impugned judgment and order. The trial Court also observed that p.w. 2 and p.w.3 have while deposed before the Court have exaggerated the version and there is serious inconsistencies in the evidence of both the witnesses i.e. p.w.2 and p.w.3 and therefore, the Trial Court has not believed ocular evidence of p.w.2 and p.w.3, as the learned Court has also observed that it is not safe to believe the evidence of p.w.

2 and 3 to prove guilt of the respondents.

25. On perusal of the impugned judgment and order, it clearly transpires that the trial Court has not committed any error of fact and law in appreciating the evidence on record and in acquitting the accused persons from the charges levelled against them. Even on re-appreciation of the evidence, it clearly transpires that the prosecution has miserably failed to prove the charge levelled against the Page 46 of 47 Downloaded on : Sun Sep 17 21:22:44 IST 2023 NEUTRAL CITATION R/CR.A/625/1996 JUDGMENT DATED: 01/02/2023 undefined accused persons beyond reasonable doubt. Therefore, the impugned judgment and order of the trial Court is sustainable and the present appeal is liable to be dismissed.

26. In view of the evidence on record, it is clearly found that the trial Court has minutely examined the evidence and has properly appreciated the evidence on record and also not committed any error of fact and law in acquitting the accused for the charges levelled against them.

27. In view of the above, the present appeal fails and stands dismissed accordingly. The judgment and order of acquittal dated 20.5.1996 passed by the learned Additional Sessions Judge, Bhavnagar in Sessions Case No. 186 of 1995 is hereby confirmed. Bail bond stands cancelled. Record and proceedings, if lying here, be sent back to the concerned Trial Court forthwith.

Sd/-

(VIPUL M. PANCHOLI, J) Sd/-

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