Gujarat High Court
State Of Gujarat vs Manoharlal Biharilal Agrawal on 31 January, 2023
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
NEUTRAL CITATION
R/CR.A/376/1997 JUDGMENT DATED: 31/01/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 376 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI : Sd/-
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK: Sd/-
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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STATE OF GUJARAT
Versus
MANOHARLAL BIHARILAL AGRAWAL
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Appearance:
MR CHINTAN DAVE APP for the Appellant(s) No. 1
MR DK PUJ(3836) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 31/01/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI) Page 1 of 21 Downloaded on : Sun Sep 17 21:20:29 IST 2023 NEUTRAL CITATION R/CR.A/376/1997 JUDGMENT DATED: 31/01/2023 undefined
1. The present appeal has been filed by the State under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code' for short) challenging the judgment and order of acquittal dated 14.02.1997 rendered by the Additional Sessions Judge, Ahmedabad (City) in Sessions Case No.325 of 1995, whereby the learned Judge acquitted the respondent - accused for the offences under Section 364 and 302 of the Indian Penal Code ('IPC' for short).
2. The brief facts leading to the filing of the present appeal as under, 2.1 On 17.05.1995 at about 09:00 a.m., Karanj Police Station received telephonic message from one Abdul Latif Suleman Momin, Owner of Marvel Hotel that one woman, her husband and her daughter had come to his hotel and they were allotted Room No.201. The man had shown his name as Ramjibhai Devjibhai of Surat. He has left hotel in the early morning at 06:00 a.m. along with young girl and the woman is unconscious in the hotel.
2.2 On receipt of the said message, PSI was sent at Marvel Hotel and, thereafter, Police Inspector, R.B. Solanki also arrived at the said hotel. Police Inspector gathered information from the owner, receptionist and waiter of the hotel and, thereafter, lodged complaint. In the said complaint, mainly it has been stated that on 16.05.1995 at about Page 2 of 21 Downloaded on : Sun Sep 17 21:20:29 IST 2023 NEUTRAL CITATION R/CR.A/376/1997 JUDGMENT DATED: 31/01/2023 undefined 09:30 a.m., one man, woman and young girl aged about 8 years had come to Marvel Hotel, they were allotted Room No.201, they had taken lunch betwen 02:00 p.m. - 03:00 p.m. and at about 04:00 p.m., they had gone out and returned back at about 07:00 p.m. 2.3 On the next day i.e. on 17.08.1995 at 06:00 a.m., man had left the hotel. The said person has informed the receptionist in the presence of waiter that his wife is ill and he was going to call the doctor and one Soda be sent in his room, therefore, waiter, Vijaysinh went to room for giving Soda. Thereafter, the man, who had given his name as Ramjibhai Devjibhai, did not return to hotel but one doctor viz., Pinakin Dalal came at the hotel, however, there was no responsible person in the room and, therefore, the said doctor did not enter into Room No.201. Meanwhile, the said Ramjibhai made phone call twice at the hotel and inquired about the health of his wife. The said woman i.e. the wife of Ramjibhai was not responding and was found unconscious and when inquired, she was found dead. Accordingly, FIR is registered under Section 302 of the IPC.
2.4 On registration of the aforesaid FIR, the Investigating Officer carried out investigation, recorded the statements of the witnesses, prepared the panchnama, seized Page 3 of 21 Downloaded on : Sun Sep 17 21:20:29 IST 2023 NEUTRAL CITATION R/CR.A/376/1997 JUDGMENT DATED: 31/01/2023 undefined muddamal and during the course of investigation, it was revealed that the present respondent - accused, who was found with the deceased, has committed offence punishable under Section 364 of the IPC also, therefore, the chargesheet came to be filed against the respondent - accused under Sections 302 and 364 of the IPC before the concerned Magistrate Court.
2.5 As the case was exclusively triable by the Court of Sessions, the concerned Magistrate committed the case under Section 209 of the Code to the concerned Sessions Court, where it has been registered as Sessions Case No.325/1995.
2.6 During the course of the trial, the prosecution has examined 29 witnesses and also produced documentary evidence as mentioned in Paragraph No.4 of the impugned judgment and order.
2.5 After the prosecution evidence was over, further statement of the accused came to be recorded under Section 313 of the Code and thereafter the learned Trial Court passed the impugned judgment and order whereby the respondent - accused was acquitted from the charges levelled against him. Therefore, the State has preferred present appeal.
3. Heard learned APP Mr. Chintan Dave for the appellant - State and learned advocate Mr. D.K. Page 4 of 21 Downloaded on : Sun Sep 17 21:20:29 IST 2023 NEUTRAL CITATION R/CR.A/376/1997 JUDGMENT DATED: 31/01/2023 undefined Puj for the respondent - accused.
4. Learned APP Mr. Chintan Dave has mainly contended that the case of the prosecution rest on circumstantial evidence and the prosecution has been able to prove that the present respondent - accused was lastly seen with the deceased in the concerned hotel. Learned APP has referred to the deposition given by PW No.4, Exh.21 (Watchman of the Hotel), PW No.6, Exh.27 (Waiter of the Hotel), PW No.7, Exh.28 (Manager-cum-Receptionist) as well as PW No.17, Exh.49 (Waiter of the Hotel). It is submitted that the aforesaid witnesses have seen the respondent - accused in the company of the deceased in the hotel and the aforesaid witnesses have identified the respondent - accused in TI Parade held before the Executive Magistrate, Ranjitsinh (PW No.5, Exh.22). At this stage, learned APP has also referred to the deposition of PW No.5, Ranjitsinh Gohil, Executive Magistrate.
5. Learned APP, thereafter, referred to the deposition given by PW No.8, Dilipsinh, PW No.10, Hiten Shah, Medical Store Owner and, thereafter, submitted that the respondent - accused purchased fertilizer/ poison, which was administered to the deceased.
6. Learned APP at this stage has also referred to the deposition given by PW No.2, Dr. Dilip Desai, who had performed the postmortem of the deceased. It is submitted that the cause of death shown in postmortem report is that the deceased died due to Page 5 of 21 Downloaded on : Sun Sep 17 21:20:29 IST 2023 NEUTRAL CITATION R/CR.A/376/1997 JUDGMENT DATED: 31/01/2023 undefined asphyxia as a result of smothering and after receipt of viscera report, it was revealed that the Aluminium Phosphate was found. It is also submitted that as per the deposition given by PW No.2, Dr. Dilip Desai, Aluminium Phosphate might have accelerated the death of the deceased but the main cause of death was asphyxia on account of smothering.
7. Learned APP would thereafter submit that in the Marvel Hotel as well as Banas Guest House, the respondent - accused made entry and from the report of the handwriting expert, PW No.16, Exh.42 as well as opinion given by the said handwriting expert, it is revealed that the said handwriting are of the respondent - accused. Thus, it is submitted that the respondent - accused was present at both the aforesaid places and he was lastly found in the company of the deceased at Marvel Hotel. Learned APP, therefore, urged that the prosecution has proved the case against the respondent - accused beyond reasonable doubt, inspite of that, the learned Sessions Court has erroneously passed impugned judgment and order of acquittal. Learned APP, therefore, urged that the impugned judgment and order of acquittal be quashed and set aside.
8. Learned APP Mr. Dave has placed reliance upon the following decisions, (1) judgment in case of Ravinder Singh @ Kaku Vs. State of Punjab, reported in 2022 (7) SCC Page 6 of 21 Downloaded on : Sun Sep 17 21:20:29 IST 2023 NEUTRAL CITATION R/CR.A/376/1997 JUDGMENT DATED: 31/01/2023 undefined 581;
(2) judgment in case of Suresh & Anr. Vs. State of Haryana, reported in (2018) 18 SCC 654;
9. On the other hand, learned advocate, Mr. Puj has vehemently opposed this appeal and referred to relevant depositions given by the prosecution witnesses as well as documentary evidence produced by the prosecution before the trial court. It is mainly contended that the prosecution has failed to prove that the respondent - accused has committed an offence punishable under Section 364 of the IPC. It is stated that as per the case of the prosecution, the respondent - accused abducted/ kidnapped Jamnaben and her minor daughter aged about 8 years viz., Kajal from ST Bus Stand with an intention to commit murder of Jamnaben, however, there is not an iota of evidence on record to suggest that the accused abducted Jamnaben from ST Bus Stand. On the contrary, as per the case of the prosecution, the respondent - accused came with Jamnaben and her daughter, Kajal first arrived at Hotel Gitanjali and, thereafter, they went to Hotal Marvel and thus, there was ample opportunity for the said Jamnaben to resist if she was being abducted against her wish and without her consent by the accused. Thus, when the prosecution has failed to prove ingredients of the alleged offences punishable under Section 364 of the IPC, the trial court has rightly acquitted the respondent -
Page 7 of 21 Downloaded on : Sun Sep 17 21:20:29 IST 2023NEUTRAL CITATION R/CR.A/376/1997 JUDGMENT DATED: 31/01/2023 undefined accused from the charges leveled against him.
10. Learned advocate would thereafter submit that there is nothing on record to show that the accused had any motive to kill the deceased. It was alleged that the accused and the deceased had illicit relation and they were having love affair. If that is so then, there was no plausible reason for the accused to kill deceased, Jamnaben and, therefore in absence of any motive on the part of the respondent - accused to commit murder of Jamnaben, the trial court has rightly passed impugned judgment and order of acquittal.
11. Learned advocate for the respondent - accused further submits that the prosecution has strongly relied upon the theory of last seen together. However, the prosecution witnesses have not identified the respondent - accused as they were not sure as to whether the accused is the same person, who was present in Hotel Marvel or Hotel Gitanjali with the deceased, Jamnaben and her daughter, Kajal. In support of the said contention, learned advocate has referred to and relied upon deposition of PW No.7, Bhagwan Daulatram Joshi, Exh.28, PW No.3, Yusuf Asifbhai, Exh.12, PW No.4, Joyelbhai Vohra, Exh.21, PW No.6, Vijaysinh Gopalsinh, Exh.27 and PW No.17, Isharsinh Gumansinh, Exh.49.
12. Learned advocate, thereafter, submitted that the prosecution has also failed to establish that the respondent - accused was having possession of Page 8 of 21 Downloaded on : Sun Sep 17 21:20:29 IST 2023 NEUTRAL CITATION R/CR.A/376/1997 JUDGMENT DATED: 31/01/2023 undefined poison with him. Learned advocate referred to the deposition given by PW No.9, Sureshbhai Kishanchand, Exh.30, PW No.11, Naranbhai Ratansinh, Exh.32, PW No.18, Ramesh Jagramji, Exh.50 and PW No.24, Jogaram Lalji, Exh.69.
13. At this stage, learned advocate submitted that the prosecution has failed to prove that the respondent - accused has administered the poison to the deceased. At this stage, learned advocate referred to the deposition given by PW No.6, Vijaysinh Gopalsinh, Exh.27.
14. Learned advocate has also referred to the deposition given by Dr. Dilipbhai Manubhai, Exh.10 and the postmortem report of the deceased.
15. After referring to the aforesaid depositions and the documentary evidence, it is submitted that the presence of the accused with the deceased was not established beyond reasonable doubt as the possession of the poison with the accused was also not conclusively proved. Thus, the trial court has not committed any error while passing impugned judgment and order of acquittal in favour of the accused.
16. Learned advocate further submits that if there are two views possible on the basis of evidence on record and one favourable to the accused has been taken by the learned Trial Court, while considering the appeal filed under Section 378 of the Code, this Court may not interfer with the view taken by the trial court.
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17. Learned advocate has also placed reliance upon the following decisions in support of his contentions, (1) judgment in case of Sharad Birdhichand Sarda Vs. State of Maharashtra, reported in (1984) 4 scc 116;
(2) judgment in case of Suresh & Anr. Vs. State of Haryana, reported in (2018 18 SCC 654; (3) judgment in case of Rahul @ Bablu @ Babu Sureshbhai Nagardas Panchal Vs. State of Gujarat, reported in 2022 (4) GLR 3131; (4) judgment in case of Ravinder Singh @ Kaku Vs. State of Punjab, reported in (2022) 7 SCC 581;
18. Learned advocate, therefore, urged that the present appeal filed by the appellant - State be dismissed.
19. We have considered the submissions canvassed by learned advocates for the parties. We have also perused the evidence produced by the prosecution led before the trial court and the decisions upon which reliance is placed by learned advocates.
20. It is not in dispute that the case of the prosecution is entirely based on circumstantial evidence and there was no eyewitness to the incident in question, therefore, it was incumbent upon the prosecution to prove that (1) the accused had motive to kill the deceased; (2) the accused was lastly seen in company with the deceased; (3) the accused was in possession of poison and he had administered the poison to the deceased; and (4) Page 10 of 21 Downloaded on : Sun Sep 17 21:20:29 IST 2023 NEUTRAL CITATION R/CR.A/376/1997 JUDGMENT DATED: 31/01/2023 undefined the deceased died on account of the poison administered by the accused.
21. From the evidence produced by the prosecution before the trial court, it is clear that the prosecution had failed to prove that the respondent - accused had any motive to kill the deceased, Jamnaben. In fact, it was alleged that the respondent - accused and the deceased had illicit relation and they were having love affair. If that is the position, there was no reason for the respondent - accused to kill the deceased and the prosecution had failed to prove motive, which is important aspect in case of circumstantial evidence.
22. Now so far as the theory of last seen together is concerned, the prosecution has examined various witnesses with a view to prove the said aspect. PW No.7, Bhagwan Daulatram Joshi, Manager-cum- Receptionist, who was working at Hotel Gitanjali, was examined vide Exh.28. If entire deposition of the said witness is carefully seen, there was discrepancy in timing as to when the person left hotel in the morning on 16.05.1995. Further, he has stated that he could not identify the accused present in the court as the person, who had come to his hotel. In the cross-examination of the said witness, once again he has stated that he was not definite when he has identified the accused in the identification parade.
23. PW No.17, Isharsinh Gumansinh, who was Waiter of Page 11 of 21 Downloaded on : Sun Sep 17 21:20:29 IST 2023 NEUTRAL CITATION R/CR.A/376/1997 JUDGMENT DATED: 31/01/2023 undefined Hotel Gitanjali, was examined vide Exh.49. The said witness has also stated that he had not seen the deceased lady and her daughter. He stated that the accused had given him chit to purchase medicine from the medical shop and he was not sure that it was capsule or table, however, he identified the accused.
24. PW No.3, Yusuf Asifbhai, who was working as Receptionist of Hotel Marvel, was examined vide Exh.12. From the deposition of said witness, it is clear that there are major contradictions in the timing of arrival of a person. Moreover as per the cross-examination, the said witness was not present as Receptionist at that time. He further stated that just before the identification parade, the police had shown the person to be identified by him, Vijaysinh and Joyel Vohra and, therefore, he had identified the said person. Thus, his cross-examination had totally wiped out the story, which was stated by him in his examination-in- chief.
25. PW No.4, Joyelbhai Vohra, who was working as Watchman in Hotel Marvel, was examined vide Exh.21. He has stated that he has identified the accused in the identification parade. He also stated that the accused had approached him to inquire about the doctor in nearby area as his wife was ill. The said witness has suggested the doctor and the accused had sent auto-rickshaw to get the doctor, who was waiting at cross road and Page 12 of 21 Downloaded on : Sun Sep 17 21:20:29 IST 2023 NEUTRAL CITATION R/CR.A/376/1997 JUDGMENT DATED: 31/01/2023 undefined in pursuance thereto, auto-rickshaw driver dropped the doctor for examination of the said lady and then, the said doctor went near the room of lady to check her, however, the said witness did not know anything more about the incident. The said witness also could not identify the respondent - accused sitting in the Court.
26. PW No.6, Vijaysinh Gopalsinh, who was working as Waiter at Hotel Marvel, was examined vide Exh.27. As per his deposition, the respondent - accused asked to bring soda since health of his wife was bad and, therefore, the said witness brought the soda to the room, thereafter, the said lady consumed the soda in his presence. The man there in the room was inquiring for doctor and had sent him also to get the doctor, however, when he reached the clinic of the doctor, he came to know that the doctor had already left for hotel Marvel in auto-rickshaw. Thereafter he reached the hotel, where he had seen the doctor in the hotel. The said witness in his cross-examination has specifically stated that the constable has asked him to identify the accused just before the identification parade.
27. PW No.8, Dilipbhai Shantilal Shah was examined vide Exh.29. He has stated in his deposition that the accused met him along with the deceased on 16.05.1995 at around 10:00 a.m. to 10:30 a.m., however, the said witness further stated that he did not say about the prior dealing with the Page 13 of 21 Downloaded on : Sun Sep 17 21:20:29 IST 2023 NEUTRAL CITATION R/CR.A/376/1997 JUDGMENT DATED: 31/01/2023 undefined accused, however, there are several major contradictions and discrepancies in his deposition and, therefore, the prosecution has failed to prove the presence of the accused.
28. Thus from the deposition of the aforesaid witnesses, it cannot be conclusively proved that the respondent - accused was lastly seen with the deceased.
29. PW No.1, Dr. Pinakin Mulchandbhai Dalal was examined at Exh.8. In his deposition, he has stated that auto-rickshaw driver came to pick him up as he had received call from the hotel that one lady was sick, however, he had not attended the said lady as there was no responsible person in Room No.201. He stated that the person, who met him at the cross road, may be the accused but the said witness is not sure about the same.
30. PW No.5, Ratansinh Virsangbhai Gohil, who was Executive Magistrate at the relevant time, was examined vide Exh.22. The said witness has stated about the procedure followed by him while conducting test identification parade. However from the deposition given by the aforesaid witness, it is revealed that the concerned Police Officer asked certain witnesses to identify the respondent - accused and, therefore, the identification parade was not beyond suspicion and there were several discrepancies. Thus, the trial court has rightly discarded the deposition given by the said witness.
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31. PW No.9, Sureshbhai Kishanchand, who was having pan galla near Gheekantha court, was examined vide Exh.30. This witness has stated that in his presence, one small iron box was recovered at the instance of one accused but he is not able to identify as to whether he is the accused present in the Court.
32. No so far as the medical evidence regarding death of the deceased, Jamnaben is concerned, the prosecution has examined PW No.2, Dr. Dilip Manubhai Desai at Exh.10. In the cross-examination of the said witness, he has stated that the cause of death was asphyxia as a result of smothering. He further stated that the cause of death assigned by him in column no.23 of postmortem note, Exh.23 was not a tentative cause, however, viscera was sent to FSL and Aluminium Phosphate was found therefrom but according to the said witness, Aluminium Phosphate might have accelerated the death of the deceased but the main cause of death was asphyxia on account of smothering. From the postmortem note and the deposition of the aforesaid witness i.e. Dr. Dilip Desai, there is no reason to believe that the cause of death was on account of asphyxia as a result of smothering. The injuries mentioned show that force might have been used to cover the noise and mouth of the deceased, however, the question is whether same can be attributed to the respondent - accused or not. If the deposition of the witness, Vijaysinh, Page 15 of 21 Downloaded on : Sun Sep 17 21:20:29 IST 2023 NEUTRAL CITATION R/CR.A/376/1997 JUDGMENT DATED: 31/01/2023 undefined who was Waiter at the Hotel Marval, is referred to once again at this stage, as per the deposition of said witness, the accused was present when he gave soda to the deceased and he told the waiter to go and call the doctor. Therefore if the accused had administered the poison to the deceased, there was no earthly reason for him to make any effort to call the doctor. After administering poison and after smothering caused to the deceased, he could have conveniently left the hotel without informing anybody.
33. So far as the deposition given by the handwring expert i.e. PW No.16, Exh.42 is concerned, even if it is believed that the disputed handwriting are of the respondent - accused and the accused was last seen together with the deceased then, it is difficult to come to a definite conclusion that it was the accused and none else, who has committed murder of the deceased.
34. At this stage, this Court would like to refer to the decision of the HOn'ble Supreme Court in case of Sharad Birdhichand Sarda (supra), wherein the Hon'ble Supreme Court in Paragraph Nos.153, 159 and 165 has observed as under, 153 A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :
(1) the circumstances from which the Page 16 of 21 Downloaded on : Sun Sep 17 21:20:29 IST 2023 NEUTRAL CITATION R/CR.A/376/1997 JUDGMENT DATED: 31/01/2023 undefined conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao BobadeV/s. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made :
"certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible
hypothesis except the one to be
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proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied :
(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2) the said circumstance point to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation.
165. So far as this matter is concerned, in such cases the Court must carefully scan the evidence and determine the four important circumstances which alone can justify a Page 18 of 21 Downloaded on : Sun Sep 17 21:20:29 IST 2023 NEUTRAL CITATION R/CR.A/376/1997 JUDGMENT DATED: 31/01/2023 undefined conviction :
(1) there is a clear motive for an accused to administer poison to the deceased. (2) that the deceased died of poison said to have been administered. (3) that the accused had the poison in his possession.
(4) that he had an opportunity to administer the poison to the deceased.
35. Keeping in view the aforesaid decision, if the evidence as discussed hereinabove has been examined, we are of the view that the prosecution has failed to prove the case against the respondent - accused beyond reasonable doubt.
36. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC
225). In the instant case, the learned APP for the applicant has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
37. As observed by the Hon'ble Supreme Court in the Page 19 of 21 Downloaded on : Sun Sep 17 21:20:29 IST 2023 NEUTRAL CITATION R/CR.A/376/1997 JUDGMENT DATED: 31/01/2023 undefined 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.
38. We have independently re-appreciated the evidence produced by the prosecution before the learned Trial Court and also examined the reasoning recorded by the learned Trial Court while passing the impugned judgment and order of acquittal and we are of the view that if in light of the above circumstances, the learned Trial Court felt that the accused could get the benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, even though we are of the opinion that in an appeal against acquittal, powers of appellate Court are as wide as that of the Trial Court and it can review, re-appreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the the Page 20 of 21 Downloaded on : Sun Sep 17 21:20:29 IST 2023 NEUTRAL CITATION R/CR.A/376/1997 JUDGMENT DATED: 31/01/2023 undefined facts and circumstances of the present case as discussed hereinabove, the view taken by the learned Trial Court for acquitting the accused was possible and plausible. Therefore, on the basis of evidence, even if it is to be assumed that the other view is equally possible, even then it is well settled and well-established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the learned Trial Court, it ought not to be disturbed by the Appellate Court.
39. In view of the aforesaid discussion, we are of the view that the trial court has not committed any error while passing impugned judgment and order of acquittal in favour of the respondent - accused and, therefore, no interference is required in the present appeal.
40. Accordingly, the present appeal is dismissed.
Record & Proceedings are ordered to be sent back forthwith.
Sd/-
(VIPUL M. PANCHOLI, J.) Sd/-
(HEMANT M. PRACHCHHAK, J.) Gautam Page 21 of 21 Downloaded on : Sun Sep 17 21:20:29 IST 2023