Gujarat High Court
State Of Gujarat vs Koli Babu Gordhan on 18 January, 2023
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
NEUTRAL CITATION
R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 589 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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
KOLI BABU GORDHAN & 5 other(s)
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Appearance:
MR CHINTAN DAVE APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1,4,5,6
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2,3
MR ARVIND K THAKUR(2322) for the Opponent(s)/Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 18/01/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK) Page 1 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined
1. The appellant - State has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973 against the judgment and order dated 28.02.1995 passed by the learned Sessions Judge, Bhavnagar (hereinafter be referred to as "the Trial Court") in Sessions Case No.227 of 1993, whereby the learned Sessions Judge has acquitted the accused from the offences punishable under Sections 302 read with Sections 147, 148, 149, 324, of the Indian Penal Code (hereinafter be referred to as "the IPC").
2. Present appeal came to be admitted by this Court vide order dated 07.03.1996. It is relevant to note here that during the pendency of the present appeal respondents no.1, 4, 5 and 6 were died and the appeal is abated qua respondents no.1, 4, 5 and 6 and now the present is only for respondents no.2 and 3.
3. Briefly stated the case of the prosecution is that on 06.08.1993, complainant Rameshbhai @ Udabhai Bhagwanbhai, who was residing in Anangnagar situated in slum board area and due to his illhealth, he had not gone Page 2 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined for labour work. That deceased Bhura Batuk was residing at Karachaliyapara and who was friend of the complainant and, therefore, the deceased went to meet the complainant. That on 06.08.1993 at 5.00 p.m., the complainant went to sit in the chowk and deceased Batuk was sitting on the Ota of Meladi Maata Temple and, therefore, the complainant went there where the deceased set and both were talking till 11.00 p.m. and when they both were thinking to go home between 11.00 p.m. to 11.30 p.m. at that time accused persons armed with weapons came there and assaulted the deceased due to which he sustained serious injuries and the complainant also sustained the injury in the incident. In view of the said incident, a complaint came to be lodged by the complainant before the "B" Division Police Station, Bhavnagar.
3.1 On the basis of this fact, the investigation came to be started. After collecting certain materials, the police has arrested the accused and after completion of investigation, the charge-
Page 3 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined sheet came to be filed before the concerned learned Judicial Magistrate, First Class.
3.2 As the case was triable by the Court of Sessions, the learned Judicial Magistrate, First Class has committed the case to the Court of Sessions wherein it was registered as Sessions Case No.227 of 1993.
3.4 The Trial Court has framed the charges against the accused and explained the same to them. The accused have denied having committed any offence and pleaded for trial.
3.5 It appears from the records that to prove the case, the prosecution has examined the following witnesses:
P.W.1 Ramesh Bhagwanbhai, complainant Exh.17 P.W.2 Himatlal Jivabhai Exh.18 P.W.3 Chhabiben w/o. Himatbhai Exh.19 P.W.4 Dhirubhai Kanjibhai Exh.30 P.W.5 Nanubhai Jivabhai Exh.32 P.W.6 Shankar Dayalbhai Exh.40 P.W.7 Dr.Ganibhai Kasambhai Saiyed Exh.42 P.W.8 Chandrakant Manshankar Bhatt, Head Exh.46 Page 4 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined Constable P.W.9 Mepabhai Premjibhai Chauhan, PSI Exh.47 P.W.10 Jayantibhai Babubhai Exh.48 P.W.11 Vanrajsinh Juvansinh Gohil, PI Exh.50 3.6 In addition to this, the prosecution has also produced the following documentary evidence.
Sr.No. Particulars Exhibit
1 Complaint of Ramesh Bhagwanbhai "A"
2 Panchnama of blood stain of the cloth of 20
Rameshbhai
3 Panchnama of cloth of deceased Bhura Batuk 21
4 Police report for postmortum 22
5 Letter of FSL 24
6 Opinion of FSL 25
7 Declaration 26
8 Arrest panchnama of accused Rakesh and 31
Budha
9 Arrest panchnama of accused Babu Gordhan 33
10 Arrest panchnama of Bharat Guna 34
11 Arrest panchnama of accused Kesha Narshi 35
12 Arrest panchnama of accused Daya Narshi 36
13 Inquest panchnama 38
14 Panchnama of the scene of ofefnce 39
15 Medical certificate of the complainant 43
16 Postmortem Note 44
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NEUTRAL CITATION
R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023
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3.7 Thereafter, further statements of the accused under
Section 313 of the Criminal Procedure Code were recorded by the Trial Court wherein the accused have denied having committed any offence and pleaded that they are innocent. The accused side has neither examined themselves on oath nor they have examined any defence witness.
3.8 After completion of the trial and having heard both the sides, the Trial Court has acquitted the accused from the charges levelled against them.
4. Being aggrieved and dissatisfied with the impugned judgment and order of acquittal, the State has preferred the present appeal.
5. We have heard Mr.Chintan Dave, learned Additional Public Prosecutor for the appellant - State and Mr.Arvind Thakur, learned advocate for the respondents at length. We have perused the evidence on record as well as impugned judgment and order of the Trial Court.Page 6 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023
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6. Mr.Chintan Dave, learned Additional Public Prosecutor for the appellant - State has submitted that the complainant is an injured witness and should have been believed and even he has no enmity with the accused persons. He has submitted that the information is received during the patrolling, which fact is evident from the station diary. He has submitted that the Trial Court discarded the version of the eye witnesses on the ground that they are not trustworthy and believable. He has submitted that the Trial Court has disbelieved the case of the prosecution which is fully corroborated by the evidence of the witnesses and they have supported the case of the prosecution and thereby the prosecution has proved its case beyond reasonable doubt. He has submitted that the finding recorded by the Trial Court is not in accordance with law and the principles laid down by the Hon'ble Supreme Court as well as this Court. Learned APP has referred and relied upon the evidence of P.W.2 Ramesh Bhagwanbhai at Exhibit 17 and has submitted that this witness clearly deposed in his deposition that he was sitting together with the deceased from 5.00 p.m. till the incident took place i.e. upto 11.00 p.m to 11.30 p.m. meaning thereby this witness was Page 7 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined sitting together with the deceased for almost seven hours prior to the assault. He has submitted that the complainant has narrated participation of each of the accused in the alleged incident and the accused caused the injury to the deceased as well as the complainant and his evidence is not lacking and, therefore, the conviction can be made based on the deposition of the complainant. He has submitted that P.W.2 Himatlal Jivabhai at Exhibit 18, P.W.3 Chhaniben wife of Himatbhai at Exhibit 19, P.W.6 Shankar Dayalbhai at Exhibit 40 and P.W.10 Jayantibhai Babubhai at Exhibit 48 have supported the case of the prosecution and their evidence is fully corroborated the case of the prosecution. It is submitted by learned APP that the FSL report and the recovery panchnama both supported the case of the prosecution beyond reasonable doubt. Learned APP has submitted that Dr.Ganibhai at Exhibit 42, who performed the postmortem, in his earlier part of the deposition, has supported the case of the prosecution and even the independent witnesses have also supported the case of prosecution beyond reasonable doubt. He has submitted that though the case is rest on the evidence of the eye witness and the injured informant, the Trial Page 8 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined Court has disbelieved the evidence led by the prosecution while passing the impugned judgment and order of acquittal. He has submitted that even though there are ample evidences produced by the prosecution to connect the accused with the crime, the Trial Court has acquitted the accused of the charges levelled against them. He has urged that the impugned judgment and order of acquittal deserves to be quashed and set aside and thereby reversed the same and the accused be convicted for the charges levelled against them. In support of his submissions, learned APP has referred to and relied upon the decisions in the case of (1) Gurmej Singh Vs. State of Punjab And Haryana reported in 1991 (2) Suppl. SCC 75; (2) Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415, (3) Dayal Singh and others Vs. State of Uttar Pradesh reported in (2012) 8 SCC 263; (4) Kuria Vs. State of Rajasthan reported in (2012) 10 SCC 433 and (5) Jafarudheen and others Vs. State of Kerala reported in (2022) 8 SCC 440.
7. Per contra, Mr.Arvind Thakur, learned advocate appearing Page 9 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined for the respondents - accused has supported the impugned judgment and order of the Trial Court and submitted that the Trial Court has after considering all the evidences produced on record, passed the order acquitting the accused of the charges levelled against them. He has submitted that Dr.Ganibhai Kasambhai Saiyed examined at Exhibit 42, who in his cross-
examination, has admitted that the injury caused to the deceased is not likely to be caused by the weapon which is discovered and recovered at the behest of the respondents. He has submitted that the said doctor in his deposition has deposed that at the time of performing postmortem, some digestive food found in the stomach of the deceased meaning thereby the deceased took the food prior to 2-3 hours of the incident, which fact is not suggested by the complainant in his evidence and, therefore, the story put-forth by the prosecution has rightly disbelieved by the Trial Court. He has submitted that there is discrepancy and doubt in the case of the prosecution and it is the case of the prosecution that the informant - injured complainant has given two complaints before the two different police officers at the scene of offence, but only one complaint came on record Page 10 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined and the prosecution has not given sufficient explanation as to whether the first complaint is recorded either by the Police Inspector Mr.Gohil or by the Police Sub Inspector Mr.Chauhan, who reached at the scene of offence first in point of time and, therefore, this fact creates doubt. He has submitted that there is inter se contradictions in the depositions of the so-called eye witnesses / chance witnesses and, therefore, the Trial Court has, while appreciating all the evidence, rightly passed the impugned judgment and order of acquittal. He has therefore urged that no interference is required to be called for in the present appeal and the appeal being meritless deserves to be dismissed and the impugned order of acquittal be confirmed. In support of his submissions, Mr.Thakur, learned advocate appearing for the respondents has relied upon the decisions in the case of State of Gujarat Vs. Ratniyabhai Nevsingbhai Rathva reported in 2022 (0) Supreme (Gujarat) 289 and State of Gujarat Vs. Lalitaben alias Shardaben Haribhai Thakkar and others reported in 2014 0 Cri.L.J. 1219.
8. P.W.1 Ramesh Bhagwanbhai, complainant examined at Page 11 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined Exhibit 17. As per his say, the Police Sub Inspector reached to the place of incident immediately and registered the complaint/FIR of the complainant at 2.00 a.m. in night hours on 07.05.1993 and upto 5.00 a.m., he was not sent to the hospital for treatment, who sustained the injury in the incident. This witness has deposed that the Police Inspector reached at the place of incident and registered the another FIR.
In view of the above, it appears that there were two FIRs registered, however, only one FIR came to be produced before the Trial Court while examining the Investigating Officer. This vital circumstances goes to the rout of the case of the prosecution doubtful. As per the say of this witness, he was beaten by the Investigating Officer at the time of recording the FIR, but there was no proper explanation given by the prosecution and this fact also creates doubt and therefore the evidence of this witness cannot be relied upon for the purpose of convicting the accused persons.
9. P.W.2 Himatlal Jivabhai examined at Exhibit 18 and P.W.3 Page 12 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined Chhaniben wife of Himatlal examined at Exhibit 19. These two witnesses have clearly deposed that till the next day, the Police Inspector has not recorded the statement of P.W.2 and on what time the statement of Chhaniben came to be recorded.
So, this fact clearly raises doubt about the case of the prosecution.
10. P.W.7 Dr Ganibhai Kasambhai Saiyed examined at Exhibit 42, who performed postmortem of the deceased.
In his cross-examination, this witness has clearly opined that the injuries found on the body of the deceased more particularly injury no.4, 5 and 19 are not possible by the weapons i.e. Articles No.15, 18 and 21. In addition to that this doctor further opined that deceased had taken food prior to 2-3 hours from the actual death. If that is so, the said aspect is not supported by P.W.1 as he himself sustained injury who accompanied the deceased during whole incident from 5.00 p.m. to 11.00 p.m. to 11.30 p.m. Page 13 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined Therefore, the Trial Court has discarded and disbelieved the evidence of the witness. The Trial Court has discussed the evidence at length of the Investigating Officer and observed that the story of the prosecution there were two FIRs registered one by the Police Sub Inspector and another by Police Inspector on the same day out of which, only one FIR is produced. It is further to be noted that the say of the prosecution that the Police Sub Inspector has received information from the wireless massage from the PSO of "B" Division Police Station with regard to the incident and on that basis he immediately reached to that place.
But the prosecution has not produced any evidence to the effect that who has given the information to the concerned PSI and whether that information was reduced in writing by the PSO in the station diary or whether that information was conveyed in proper form to the concerned PSI by the PSO. All these aspects are not brought on record by the prosecution by examining the very PSI who received information from the PSO of the "B"
Division Police Station.
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11. P.W.11 Vanrajsinh Junavsinh Gohil, Police Inspector, examined at Exhibit 50. This witness has deposed that he immediately reached to the place of the incident and registered the FIR, drawn the panchnama of the scene of offence and recorded the statements of the witnesses upto 5.00 a.m.
12. The other eye witnesses namely Chhanudiben and Kakalben, both were present along with Chhaniben at the place of incident, however, the prosecution has not examined these witnesses and, therefore, this suggests that the prosecution has not rendered any explanation in this regard. Even, the second FIR is also not produced on record before the concerned Court and therefore, the Trial Court has discarded the evidence of those witnesses not only on the ground of contradictory to each other but has also not given the clear picture. Though the prosecution has tried to support the case but they failed to do so.
13. We have perused the original record and proceedings of the case and the evidence on record. We have gone through the impugned judgment and order of acquittal passed by the Trial Page 15 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined Court.
14. 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:-
"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 Page 16 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined 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 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.
Page 17 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined 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 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 Page 18 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined 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;
(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."
Page 19 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined 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."
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:
"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 Page 20 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined 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 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 Page 21 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined 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. 809-10) "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 Page 22 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined 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."
15. 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 Page 23 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined 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 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 Page 24 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined 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):
"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."
24. In Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793, Krishna Iyer, J., observed as follows:
(SCC p.799, para 6) Page 25 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined "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 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.Page 26 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023
NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined (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 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 Page 27 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined 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 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.
16. It is well settled by catena of decisions that the an 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 Page 28 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined the trial Court.
17. 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 Page 29 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined crime with which he is charged.
18. In the case of Gurmej Singh (supra), the Hon'ble Supreme Court has held and observed in paragraph no.8 as under:-
"8. Counsel for the appellants next submitted that according to the prosecution appellant Gian Singh was armed with a Gandasi and he is alleged to have given a blow therewith on the chest of the deceased. Ordinarily a Gandasi blow would cause an incised wound whereas the deceased had an abrasion 5" x 1" on the chest caused by a hard and blunt substance. According to counsel normally when a witness deposes to the use of' a particular weapon there is no warrant for supposing that the blunt side of the weapon was used by the assailant. In support of this contention counsel invited our attention to two decisions, namely, Hallu V/s. State of M. P. (1974) 4 SCC 300 and Nachhattar Singh V/s. State of Punjab (1976) 1 SCC 750. In his submission, therefore, the injury found on the chest could not be attributed to Gian Singh who is stated to have used the Gandasi. We see no merit in this contention for the simple reason that the prosecution witnesses have categorically stated that Gian Singh used the blunt side of the Gandasi. If the prosecution witnesses were silent in this behalf the submission of counsel would have carried weight. But where the prosecution witnesses categorically state that the blunt side of the weapon was used there is no room for believing that the sharp side of the weapon which would be normally used had in fact been used. The observations in the aforesaid two judgments do not lay down to the contrary. In fact in the first mentioned case it is clearly stated that if the prosecution witnesses have clarified the position, their evidence would prevail and not the normal inference. Counsel, however, made a grievance that the prosecution had not tried to elicit the opinion of P.W. 1 Dr. Malhotra on the question whether such an abrasion was possible by a Gandasi blow. According to him, as held by this Court in Kartarey V/s. State of U. P. (1976) 1 SCC 172 and Ishwar Singh V/s. State of U. P. (1976) 4 SCC 355, it was the duty of the prosecution to elicit the opinion Page 30 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined of the medical man in this behalf P.W. 1 clearly stated in the course of his examination-in-chief that injuries Nos. 2, 3 and 4 were caused by a blunt weapon. It is true that he was not specifically asked if the chest injury could have been caused by the blunt side of the Gandasi. It cannot be gainsaid that the prosecution must endeavour to elicit the opinion of the medical man whether a particular injury is possible by the weapon with which it is alleged to have been caused by showing the weapon to the witness. In fact the Presiding Officer should himself have elicited the opinion. However, in this case it should not make much difference because the evidence of P.Ws. 2 and 3 is acceptable and is corroborated by the first information report as well as P.W. 4. If the medical witness had also so opined it would have lent further corroboration. But the omission to elicit his opinion cannot render the direct testimony of P.Ws. 2 and 3 doubtful or weak. We, therefore, do not see any merit in this submission. In fact if we turn to the cross-examination of P.W. 1 we find that the defence case was that these three injuries were caused by the rubbing of the body against a hard surface, a version which has to be stated to be rejected."
19. The relevant paragraph of the decision of the Hon'ble Supreme Court in the case of Chandrappa (supra), reads as under:-
"The following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;
(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and Page 31 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the 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."
20. In the case of Girish Singh Vs. State of Uttarakhand reported in (2020) 18 SCC 423, the Hon'ble Supreme Court has held and observed in paragraphs no.30 to 32 as under:-
"30. In Upendra Pradhan v. State of Orissa, 2015 11 SCC 124 this Court took the view that if there is benefit of doubt, it must go to the accused, and in case of two views, the view that favours the accused, should be taken, which was more so where the Trial Court's decision was not manifestly illegal, perverse and did not cause miscarriage of justice.
31. In Dilawar Singh and others v. State of Haryana, 2015 1 SCC 737 this Court took the view that court will not interfere with the verdict of acquittal merely because on evaluation of evidence, a different plausible view may arise. Very substantial and compelling reasons must exist Page 32 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined with the Appellate Court to interfere with an acquittal.
32. In Gamini Bala Koteswara Rao and others v. State of Andhra Pradesh Through Secretary, AIR 2010 SC 589 this Court accepted the contention of the appellant that interference in an appeal against acquittal should be rare and in exceptional circumstance. It was further held that it is open to the High Court to reappraise the evidence and conclusions arrived at by the Trial Court. However, it is limited to those cases where the judgment of Trial Court was perverse. This Court went on to declare that the word "perverse", as understood in law, has been understood to mean, "against the weight of evidence". If there are two views and the Trial Court has taken one of the views merely because another view is plausible, the Appellate Court will not be justified in interfering with the verdict of acquittal (See K. Prakashan v. P.K. Surenderan, 2008 1 SCC 258).
22. 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.
23. In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280, Supreme Court has held as under:Page 33 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023
NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined "The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions 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."
24. 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 belief that if it had been the trial Court, it might have taken a different view.
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25. In the very recent judgment reported in 2021 (15) SCALE 184 in the case of Mohan @ Srinivas @ Seena @ Tailor Seena V/s. State of Karnataka, the hon'ble Apex Court has observed the scope of section 378 of the Code in paras No.20 to 22 as under :-
"20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial Court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial Court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.
21. Every case has its own journey towards the truth and it is the Court's role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the nature of offence affects its performance. We have a hierarchy of courts in dealing with cases. An Appellate Court shall not expect the trial Court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial Court decides a case on its own merits despite its sensitivity.
22. At times, courts do have their constraints. We find, different decisions being made by different courts, namely, Page 35 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023 NEUTRAL CITATION R/CR.A/589/1995 JUDGMENT DATED: 18/01/2023 undefined trial court on the one hand and the Appellate Courts on the other. If such decisions are made due to institutional constraints, they do not augur well. The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform. Indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark."
26. Considering the facts and circumstances of the present case, we are in complete agreement with the reasoning and finding recorded by the Trial Court while passing the impugned judgment and order of acquittal. In view of the above, the appeal deserves to be dismissed and accordingly, it is dismissed. The impugned judgment and order of acquittal passed by the Trial Court is hereby confirmed. Bail bond, if any, stands cancelled.
Registry is directed to transmit back the record and proceedings of the case to the concerned Trial Court forthwith.
(VIPUL M. PANCHOLI, J) (HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 36 of 36 Downloaded on : Sun Sep 17 20:56:00 IST 2023