Gujarat High Court
State Of Gujarat vs Govindbharthi Ganapatbharthi on 17 November, 2022
Author: S.H.Vora
Bench: S.H.Vora, Rajendra M. Sareen
R/CR.A/984/1995 CAV JUDGMENT DATED: 17/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 984 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE S.H.VORA Sd/-
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
GOVINDBHARTHI GANAPATBHARTHI & 3 other(s)
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Appearance:
MR HK PATEL APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 3,4
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
MR HEMANG H. PARIKH for
MR HM PARIKH(574) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE S.H.VORA
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 17/11/2022
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN) Page 1 of 25 Downloaded on : Thu Nov 17 21:23:32 IST 2022 R/CR.A/984/1995 CAV JUDGMENT DATED: 17/11/2022
1. Present Criminal Appeal is filed by the appellant - State being aggrieved by the judgement and order passed by the learned Additional Sessions Judge, Sabarkantha at Himmatnagar dated 10/7/1995 in Sessions Case No.45 of 1994 whereby the learned Judge has acquitted all the accused / respondents from the offence punishable under sections 363, 366, 366A, 506(2), 376, 341, 342, and 114 of Indian Penal Code.
2. Brief case of the prosecution is that the complainant - PW-2 lodged an F.I.R. on 21.11.1993 for the offences punishable under Section 341, 342, 363, 365, 366, 376, 506(2) and 114 of the Indian Penal Code, 1860 against the Original Accused. It has been alleged that the daughter of the complainant - victim was kidnapped by the Accused No. 1 who is her step maternal uncle, the Accused No. 1 had given a threat and kidnapped her due to the family rivalry, he was aware of the fact that on 15.09.1993, in the afternoon, the victim was alone and therefore, threat was given and kidnapped her and called near the school and took her to the Vaishali Talkies, Himmatnagar and handed over to Accused No. 5 - Ishwarbhai Kalabhai. As per pre- planned, Accused No. 5 dropped victim at the house of Accused No. 3 - Punjaji Thakor whereby the Accused No. 3 was knowing that the victim was minor and against her will, physical relation has been administered and offence under Page 2 of 25 Downloaded on : Thu Nov 17 21:23:32 IST 2022 R/CR.A/984/1995 CAV JUDGMENT DATED: 17/11/2022 Section 365 and 376 has been committed. The Accused No. 6 has also abated in the offence and against the will of the victim, marriage has been solemnized between the victim and Accused No. 2 - Dashrathji Sankaji in the temple of Pavagardh. The complainant has further stated that on 21.11.1993, he was at his residence and PW No.4 - Hansaben Rajubharthi along with Bhikhabhai and Kantibhai Thakor, have brought the victim and Dashrathji at his residence and present F.I.R. has been filed by the Complainant - PW 2 - Mahendragiri Ranchhodgiri Goswami.
3. The investigation was set in motion and the investigating officer recorded statements of witnesses, panchnama of the scene of offence and other panchnamas were prepared, muddamal was sent to the FSL, as there was sufficient against the accused, thereafter chargesheet was filed in the court of learned Judicial Magistrate, First Class. As the case was triable by the Sessions Court, the learned Magistrate having no jurisdiction to try the case, the case was committed to the Sessions Court accordingly and was numbered as Sessions Case No.45 of 1994.
4. The learned Sessions Judge before whom the case was committed, framed the Charge. The accused denied the contents of the charge. As a result, trial was conducted by the Sessions Judge. Further Statements of the accused under section 313 of the Code of Criminal Procedure were Page 3 of 25 Downloaded on : Thu Nov 17 21:23:32 IST 2022 R/CR.A/984/1995 CAV JUDGMENT DATED: 17/11/2022 recorded in which accused / respondents denied the charges and prayed for trial. Upon recording of the Further Statements of the accused, arguments were heard by the learned Sessions Judge and thereafter trial was resulted into acquittal of all the accused from the charges levelled against them, as a result of which the present appeal is filed by the appellant - State of Gujarat.
5. It is pertinent to note that during the pendency of this appeal accused / respondent Nos.3 and 4 have expired and the present appeal stood abated qua respondent Nos.3 and 4 and the present appeal survives qua the rest of the accused / respondent Nos.1 and 2.
6. Mr.H.K. Patel, learned APP has submitted that the judgement and order passed by the learned Sessions Judge is against the evidence on record and provision of law. The learned Sessions Judge has not appreciated and accepted the medical evidence which is corroborated by the version of the eye witness. The learned Sessions Judge has also not appreciated the evidence of the investigating officer in its true and correct perspective. It is further submitted that Sessions Judge has committed a grave error in not believing the deposition of the witnesses examined by the prosecution. It is further submitted that the Sessions Judge has erred in acquitting the respondents - accused Page 4 of 25 Downloaded on : Thu Nov 17 21:23:32 IST 2022 R/CR.A/984/1995 CAV JUDGMENT DATED: 17/11/2022 from the charges levelled against them. It is further submitted that the prosecution has proved that the respondents have committed the offence under sections 363, 366, 366A, 506(2), 376, 341, 342, and 114 of Indian Penal Code. It is further submitted that the Sessions Judge has acquitted the respondents / accused merely on some minor contradictions and omissions in the evidence of the witnesses. He has further argued that the Sessions Judge has erred in not believing the evidence of the investigating officer who had no reason to implicate the accused falsely in the case. It is furthermore submitted that though the age of the prosecutrix at the time of incident was below 18 years, it is not believed by the learned Sessions Judge and as such offence punishable under section 363 though made out, the same is not believed by the learned Sessions Judge. That the offence punishable under sections 363, 366, 366A, 506(2), 376, 341, 342, and 114 of Indian Penal Code, though made out against the respondents / accused, however, the same is not believed by the learned Sessions Judge. It is further submitted that though the prosecution witnesses have supported the case of the prosecution, the learned Sessions Judge has not believed their evidence and acquitted the respondents - accused erroneously. He has requested to allow the present appeal.
7. On behalf of the respondent No.1, Mr.Hemang H. Parikh, learned advocate has submitted that there is hardly Page 5 of 25 Downloaded on : Thu Nov 17 21:23:32 IST 2022 R/CR.A/984/1995 CAV JUDGMENT DATED: 17/11/2022 any substance in the submissions of learned APP. There is no evidence on record connecting the accused with the commission of the offence. There are material contradictions and omissions in the evidence of the prosecution witnesses. The trial court has rightly appreciated the evidence on record and held that the prosecution has failed to prove the case against the respondent No.1 - accused No.1 beyond reasonable doubt and rightly acquitted the accused. He has requested to dismiss the present appeal.
8. Heard advocates for the respective parties and perused the impugned judgement and order of acquittal and re- appreciated the entire evidence on record.
9. 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 is catena of decisions that an appellate Court has full Power to review, re-appreciate and consider the Evidence upon which the Order of Acquittal is founded. However, the Appellate Court must bear in mind that in case of Acquittal, there is prejudice in favour of the Accused, firstly, the presumption of innocence is available to him under the Fundamental Principle of Criminal Jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of Law. Secondly, the Accused having secured his Acquittal, the presumption of his innocence is further reaffirmed and Page 6 of 25 Downloaded on : Thu Nov 17 21:23:32 IST 2022 R/CR.A/984/1995 CAV JUDGMENT DATED: 17/11/2022 strengthened by the trial Court.
10. On re-appreciation of the evidence on record, it appears that the case of the prosecution is that victim girl was kidnapped by the accused No.1 who is her step maternal uncle by giving threat and was handed over to the accused No.5 who had sent her to accused No.3 at the say of the accused No.1. It is further the case of the prosecution that the accused No.3 had committed rape on the victim and kept her with him for many days and thereafter all the accused had got her married with accused No.2 against the wish and will of the victim.
11. It is further the case of the prosecution that rape has been committed by the respondent No.3 / accused No.3 on the victim and thereafter under the pretext of the marriage with the respondent No.2 / accused No.2, the respondent No.2 has also committed rape on the victim against her wish and will.
12. In this case, the important witnesses examined by the prosecution are, prosecutrix and medical officer, pertaining to the allegations against the present respondents / accused. As per the case of the prosecution, the prosecutrix was threatened by the respondent No.1 / accused No.1 on the date of incident and she was abducted by the respondent No.1.
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13. Before adverting to the allegation of abduction and rape committed upon the prosecutrix by the accused No.1 and 2, it is equally important to appreciate the evidence regarding the age of the prosecutrix at the time of offence. The prosecution has examined the complainant and father of the prosecutrix. The prosecution has examined the prosecutrix on the point of her age and also examined employees of various schools where the prosecutrix has studied and the extract of the School Registers are also placed on record. The prosecution has also relied upon the evidence of Dr.Rakeshkumar, who has conducted Ossification Test.
14. The prosecutrix - PW No.1 in her evidence at Ex.13 regarding age has submitted that her age was 16 years at the time of deposition in the year 1994. She has studied upto 8th standard. She is unaware about her birth date. She is eldest in the family besides two brothers and sisters. She has lastly studied in Padmavati Girls School, Himmatnagar in 8th standard. She has produced School Leaving Certificate at Ex.14. As per the cross examination of the prosecutrix firstly she has studied in Manorama School from standard 1 to 5, then she has studied in Vrundavan School in standard 6 and then she has studied in Padmavati High School, Himmatnagar in standard 6, 7 and 8. In the context of the age of the prosecutrix, which is alleged to be 15 years at the Page 8 of 25 Downloaded on : Thu Nov 17 21:23:32 IST 2022 R/CR.A/984/1995 CAV JUDGMENT DATED: 17/11/2022 time of incident, the complainant - Mr.Mahendragiri Ranchhodgiri has been examined at Ex.16. As per him, the birth date of the prosecutrix as per the school leaving certificate is 11/6/1978. In the cross examination, the witness has specifically stated and admitted that the date of birth has been notified in the register of Nagarpalika, Himmatnagar. He has also admitted that he is ignorant about the fact that on what basis the date of birth dated 11/6/1978 has been registered in the register of the school. In which school she was admitted is also not known to him. Considering the evidence of the complainant - father of the prosecutrix, there is clear admission that the birth date of the prosecutrix has been registered in the Himmatnagar Nagarpalika. This aspect has not been investigated in the entire case by the investigating officer nor the complainant - father of the prosecutrix has mentioned the age of the prosecutrix in his complaint. Only in the last line of the complaint, it is mentioned that the School Leaving Certificate is produced herewith. As such the authenticity of the birth date can be made out from the certificate of the Nagarpalika and as per the admission of the father of the prosecutrix, the birth was registered in the Himmatnagar Nagarpalika but the investigating officer Mr.Pratapsinh has not collected any evidence regarding birth certificate from the Himmatnagar Nagarpalika. He has also not collected evidence as to who admitted the prosecutrix in the first school. As such, the basis of the Page 9 of 25 Downloaded on : Thu Nov 17 21:23:32 IST 2022 R/CR.A/984/1995 CAV JUDGMENT DATED: 17/11/2022 birth date 11/6/1978 mentioned in the first school register is not clarified by the prosecution in the entire case.
15. In this case, the prosecution has examined three witnesses of the different school. At Ex.50 witness Mr.Dipakbhai Nagindas - employee of Padmavati Girls School has been examined. He has produced Entry No.375 of School Register at Ex.57 in which the birth date is 11/6/1978 and as per the register, the prosecutrix was admitted in 8th standard in the school. He is the teacher of the school. The entry was made by the Manager - Mr.Pravinbhai Soni, who is not examined. One Clerk of Padmavati School namely Mr.Parulben Soni has been examined at Ex.54. She has also produced copy of the entry No.1217 of General Register of the prosecutrix at Ex.55 wherein the birth date of the prosecutrix has been shown as 11/6/1978 and she had been admitted in 7 th standard in the school and last school where she has studied is mentioned as Ashramshala Nanalpur and the birth date is mentioned in the Padmavati School on the basis of the birth date mentioned in the last school. The prosecution has also examined Clerk - Mr.Amrutbhai Patel from Manorama Primary School at Ex.57 who has specifically stated that Mahendragiri had come for the admission of prosecutrix and the Form was filled for the admission which is produced at Ex.58. At Ex.59 extract of the register of the birth date of the prosecutrix is produced which shows birth date of the Page 10 of 25 Downloaded on : Thu Nov 17 21:23:32 IST 2022 R/CR.A/984/1995 CAV JUDGMENT DATED: 17/11/2022 prosecutrix as 11/6/1978 and as per the evidence of the witness, the prosecutrix has studied from standard 5 to 7 in Manorama School. It has also come on record that what was the basis of the birth date mentioned in the record is not known to any one. Considering the overall evidence pertaining to the birth date of the prosecutrix as 11/6/1978, there are contradictory version brought on record by the witnesses including the prosecutrix and the complainant - father of the prosecutrix. The basis of the birth date 11/6/1978 has not been brought on record by any of the witnesses including complainant - father of the prosecutrix. Moreover, as per the say of the prosecutrix, she has studied in Manorama School from standard 1 to 5, she has studied in standard 6 in Vrundavan School and she has studied in standard 7 and 8 in Padmavat School. Whereas, as per the say of Mr.Amrutbhai Patel of Manorama School, which was the first school, the prosecutrix has studied from standard 1 to 7. Whereas, as per the say of the prosecutrix regarding study in Vrundavan High School, Prantij is falsified to that extent. Moreover, as per the say of Ms.Parulben Soni of Padmavati School, the prosecutrix was admitted in standard 7 and on the other hand she has studied upto standard 7 in Manorama School, which is contradictory with the version of the prosecutrix. Moreover, as per the say of Ms.Parulben Soni, Clerk of Padmavati School, prior to admission in Padmavati School, the prosecutrix had studied in Ashramshala, Nananpur. So Page 11 of 25 Downloaded on : Thu Nov 17 21:23:32 IST 2022 R/CR.A/984/1995 CAV JUDGMENT DATED: 17/11/2022 from the entire evidence, the source of birth date 11/6/1978 has not been brought on record as to how the birth date 11/6/1978 has been mentioned in the first school - Manorama School. As regards the study of the prosecutrix is considered, there is contradictory version as to the class in which she has studied in various school according to the prosecutrix as well as employee of the school examined on record. Though as per the admission of the complainant, the birth date of the prosecutrix was registered in the Himmatnagar Nagarpalika, no investigation has been carried out by the investigating officer to that effect nor any age has been mentioned by the complainant in the complaint.
16. It is pertinent to note that though the person who had gone with the prosecutrix for admission in the school is not knowing the birth date of the prosecutrix and he has not clarified that on what basis the birth date 11/6/1978 has been registered in the register of Manorama School. Besides, the father of the prosecutrix, the mother is the best person who can throw some light upon the birth date of her first child, but the prosecution has not examined the wife of the complainant and mother of the prosecutrix - Ms.Chandrikaben. Cogent and convincing evidence as to the birth date being 11/6/1978 is not brought on record by the prosecution without ambiguity. To prove the birth date, the prosecution has relied upon Ossification Test and Page 12 of 25 Downloaded on : Thu Nov 17 21:23:32 IST 2022 R/CR.A/984/1995 CAV JUDGMENT DATED: 17/11/2022 examined Mr.Rakeshkumar Dayal at Ex.39 who has carried out the Ossification Test who is not sure as to the age of the prosecutrix and the age may be 17 years and less than 18 years, so as per the say of the Doctor as per the Ossification Text, the age of the prosecutrix is 17 years, however, there can be variaton of plus of minus two years hance it can be 15 to 19 years, but considering the evidence of the Doctor, the age of the prosecutrix was below 16 years, is not cogently and convincingly brought on record and as per the Ossification Test, it was below 18 years which cannot be strongly believed.
17. In the case of decision in the case of State Of Gujarat vs Babu Allas Roni Manilal reported in 1987 (1) GLR 590, in a case where minor girl was abducted and rape was committed, it was observed that the age of the victim is the basis of the case of abduction and rape and if the age of the victim is not proved beyond reasonable doubt and any doubt is created regarding the age of victim, the benefit of doubt goes to the accused.
Here also though the witnesses are examined on record, the age of the victim 11/6/1978 is not proved beyond reasonable doubt in light of the admission that the birth date is registered in the Nagarpalika but there is no evidence to that effect. The basis of entry in the register of the first school is also not on record and considering the Ossification Test, which is not a concrete evidence and the Page 13 of 25 Downloaded on : Thu Nov 17 21:23:32 IST 2022 R/CR.A/984/1995 CAV JUDGMENT DATED: 17/11/2022 age would be two years more or two years less. Here it has been observed by the learned Sessions Judge that the age of the victim can be 15 years as the Doctor has presumed the age of the prosecutrix to be nearly 17 years or it can be 19 years i.e. two years more. So the Ossification test cannot be said to be conclusive evidence for deciding the age of the prosecutrix. Hence, here in this case, the finding of the learned Sessions Judge that the birth date of the prosecutrix and age of the prosecutrix is not cogently and convincingly proved by the prosecution, has been rightly arrived at by the learned Sessions Judge.
18. So far as the allegation of abduction is concerned, the allegation is against the respondent No.1. PW No.1 who is the main witness has stated in her evidence that she left her house on 15/9/1993. It has also been brought in evidence that the accused No.1 is the step uncle of the prosecutrix and her family and the family of the respondent No.1 have no terms of talking or meeting with each other. It has also been brought on record that on the date of incident at 10 a.m. the respondent No.1 came to her house and threatened her to come with him at 3 p.m. and also asked her to be ready and he will pick her up her from the school. So the prosecutrix along with her clothes went to the school from where the accused Nos.1 and 5 had taken her to village Mansa, at the residence of the respondent No.3. Considering this allegation, in the cross examination she Page 14 of 25 Downloaded on : Thu Nov 17 21:23:32 IST 2022 R/CR.A/984/1995 CAV JUDGMENT DATED: 17/11/2022 has admitted that before the incident the accused No.1 had never visited her house and she had never seen him in her house and she had never gone with the respondent No.1 / accused No.1 in past. It is also admitted that at 10 a.m. accused No.1 threatened her, and her father came afterwards but she has not mentioned anything to her father or anybody about the threat by the accused No.1. As such, the theory of abduction or kidnapping of the prosecutrix by the accused nos.1 and 5 is not believable. Moreover, it has also come on record that the respondent Nos.1 and 5 have no relation with each other. As such, the reason of implicating the respondent No.5 is also brought on record. As such, the offence of kidnapping the prosecutrix by threatening her by the respondent No.1, with whom the prosecutrix's family have not good terms, is not believable and the finding to that effect has been rightly arrived at by the learned Sessions Judge.
19. So far as the allegation of rape against the respondent No.3 is concerned, as stated above, the respondent No.3 has expired during the pendency of the appeal.
20. The case of the prosecution is that after kidnapping of the minor prosecutrix, she has been forcibly married to the respondent No.2 who has kept her in his custody forcibly and committed rape upon her. This aspect is also considered by the learned Sessions Judge. PW No.1 -
Page 15 of 25 Downloaded on : Thu Nov 17 21:23:32 IST 2022R/CR.A/984/1995 CAV JUDGMENT DATED: 17/11/2022 prosecutrix has stated in her deposition that she was married to accused No.2 and was residing with the accused No.2 for two months at Village Gundel, where her relatives were also residing. It has also come on record in the deposition of the prosecutrix that for two months, she had not made any efforts to escape, lodge compliant, or inform anybody. Thereafter they were residing at Dudhali and they also went for pilgrimage in Gundel. In Gundel Hansaben Raju Bharti had come to her, who is relative of father of the prosecutrix and Hansaben took the prosecutrix and accused No.2 to Himmatnagar and handed over them to her father and thereafter complaint was filed.
In the cross examination it is admitted that initially she was taken from Mansa Bus stand to Pavagadh Bus Stand and then to Pavagadh temple. They also stayed at Himmatnagar Bus Stand for 10 to 15 minutes while returning from Pavagadh and in Mansa Bus Stand, Police Bandobast was there and though there were opportunities with the prosecutrix to escape or raise alarm, she has not made any complaint to anybody including the police. The evidence of the prosecutrix in this case does not support the case of the prosecution.
21. Admission of the prosecutrix before Hansaben Raju Bharti, who had taken the prosecutrix with her and handed over to her father and is an important witness in the case. She has specifically admitted in her cross examination that Page 16 of 25 Downloaded on : Thu Nov 17 21:23:32 IST 2022 R/CR.A/984/1995 CAV JUDGMENT DATED: 17/11/2022 the prosecutrix admitted before her that she has married with the accused No.2 and she does not want to go to Himmatnagar to her mother and father. This admission also clarifies that the prosecutrix was staying with the accused No.2 after the marriage happily and there was no force upon the prosecutrix by any of the accused. As such, the learned Sessions Judge has well discussed this aspect and finding to that recorded by the learned Sessions Judge is cogent and convincing.
22. Here in this case, the basic aspect which goes against the prosecution and which is fatal to the case of the prosecution is that, as per the case of the prosecution, the prosecutrix has been kidnapped on 15/09/1993 by the respondent No.1 and she being young girl, her father searched her in the village and with the relatives and though she was not found out, no complaint was given to the police by the father of the prosecutrix and after the prosecutrix was brought with the accused No.2 by Ms.Hansaben Raju Bharthi, FIR was lodged in November, 1993. As such, there is inordinate delay of two months in filing the FIR. The delay speaks volume of things against the prosecution. Even the said delay is not explained and same is fatal to the case of the prosecution. On account of delay of two months in lodgement of the FIR, the medical evidence is also brushed out and no evidence of rape is found by the Medical Officer - Dr.Bharatkumar Kalidas, who examined Page 17 of 25 Downloaded on : Thu Nov 17 21:23:32 IST 2022 R/CR.A/984/1995 CAV JUDGMENT DATED: 17/11/2022 the prosecutrix.
23. On perusal of the entire record, it is clearly established that the age of the victim is not proved beyond reasonable doubt. The respondent No.1 is maternal uncle having dispute with the complainant, the conduct of the prosecutrix of not informing anyone for two months and the conduct of the father of the prosecutrix of not filing complaint for missing of her daughter, falsifies the case of the prosecution. The entire case of the prosecution, which has been brought before the learned Sessions Judge has been rightly appreciated and correct finding on appreciation of the evidence on record has been given by the learned Sessions Judge.
24. Considering the entire evidence on record oral as well as documentary, this Court is of the opinion that the prosecution has failed to prove the case against the accused by leading cogent and convincing evidence. The judgement delivered by the Sessions Judge is sound on the aspect of law and facts. The evidence brought on record by the prosecution before the trial court has been rightly appreciated by the trial court. No apparent error on the face of the record is found from the judgement. The judgement does not suffer any material defect or cannot be said to be contrary to the evidence recorded.
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25. It is also pertinent to note that though the trial was conducted against six persons and all the accused were acquitted by the learned Sessions Judge, present appeal has been filed only against four accused only and the judgement and order of acquittal of the rest of the two accused has been accepted by the State, which also supports the accused.
26. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:-
"6. This Court has held in Kalyan v. State of U.P., (2001) 9 SCC 632 :
"8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further Page 19 of 25 Downloaded on : Thu Nov 17 21:23:32 IST 2022 R/CR.A/984/1995 CAV JUDGMENT DATED: 17/11/2022 reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808, this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed:
"27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice Page 20 of 25 Downloaded on : Thu Nov 17 21:23:32 IST 2022 R/CR.A/984/1995 CAV JUDGMENT DATED: 17/11/2022 cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of "The Proof of Guilt" by Glanville Williams, second edition:
"I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos."
28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793, as is clear from the following observations:
Page 21 of 25 Downloaded on : Thu Nov 17 21:23:32 IST 2022R/CR.A/984/1995 CAV JUDGMENT DATED: 17/11/2022 "Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations."
"9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the noninterference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court."
8. In Arulvelu and another versus State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under:
"36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial Page 22 of 25 Downloaded on : Thu Nov 17 21:23:32 IST 2022 R/CR.A/984/1995 CAV JUDGMENT DATED: 17/11/2022 court is either perverse or wholly unsustainable in law."
27. 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.
28. Scope of appeal against acquittal is well laid down in case of Chandrappa and ors. vs. State of Karnataka reported in (2007) 4 SCC 415, it was observed:
"42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;
(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of Page 23 of 25 Downloaded on : Thu Nov 17 21:23:32 IST 2022 R/CR.A/984/1995 CAV JUDGMENT DATED: 17/11/2022 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 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."
29. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.
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30. In view of the above and for the reasons stated above, present Criminal Appeal deserve to be dismissed and is accordingly dismissed.
Sd/-
(S.H.VORA, J) Sd/-
(RAJENDRA M. SAREEN,J) R.H. PARMAR xxx Page 25 of 25 Downloaded on : Thu Nov 17 21:23:32 IST 2022