Gujarat High Court
State Of Gujarat vs Mithabhai Keshabhai ... on 27 January, 2017
Author: A.J. Shastri
Bench: S.R.Brahmbhatt, A.J. Shastri
R/CR.A/1479/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1479 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation of
the Constitution of India or any order made
thereunder ?
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STATE OF GUJARAT....Appellant
Versus
MITHABHAI KESHABHAI VASANI....Opponent/Respondent
==============================================================
Appearance:
MR HARDIK SONI APP for the Appellant
HCLS COMMITTEE, ADVOCATE for the Opponent/Respondent No. 1
MR UMANG H OZA, ADVOCATE for the Opponent/Respondent No. 1
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 27/01/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.J. SHASTRI)
1. The present Criminal Appeal is filed by the State under Section 378(1) of Criminal Procedure Code Page 1 of 29 HC-NIC Page 1 of 29 Created On Sun Aug 13 04:06:07 IST 2017 R/CR.A/1479/2006 JUDGMENT against the judgment and order passed by learned second Additional District Judge, Rajkot on 08.03.2006, whereby the respondent accused came to be acquitted from the offences for which he has been tried.
2. The case of the prosecution is that the complainant Kanjibhai Keshabhai was residing at village Devpara. The opponent accused is his brother. The daughter of the opponent accused Mithabhai was married on 13.02.2005. It is further stated that on 11.02.2005 the window of the opponent accused was opened, the complainant saw that the opponent accused was not present, he found that near the stove Labhuben was lying and there was blood near her and the complainant found injury on the back side of the head of the deceased. In the complaint it has been averred that opponent accused was causing harassment to Labhuben and resultantly on account of incident in question a complaint came to be filed before the Jasdan Police Station, which was registered as C.R. No.I-17/05 for the offences punishable under Section 302 read with Section 498(A) of Indian Penal Code and Section 135 of Bombay Police Act. This complaint came to be investigated by the Investigating Officer and the charge-sheet came to be filed after recording the statement of witnesses and after executing the panchanama of scene of offence and after collecting postmortem report and the necessary laboratory reports, the charge-sheet was submitted before the learned Judicial Magistrate, 1st Class, Jasdan.
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Pursuant to the charge-sheet, since the case was
triable by the sessions Judge in exercise of power under Section 209 of the Code of Criminal Procedure, the case was committed as Sessions Case No.49/05 before the learned second Additional District and Sessions Judge, Rajkot. The charge came to be framed at Exhibit-11 and the plea was recorded of the accused person at Exhibit-12 and since the accused person denied the offence having been committed the case was put up for trial. Several other witnesses examined by the prosecution to prove the case and the documentary evidence also came to be adduced which read as under;
P.W. Name of Witness Exhibit No.
No.
1 Kanjibhai Kesahbhai 16
2 Gandabhai Rajabhai 18
3 Rudabhai Keshabhai 19
4 Arjanbhai Keshabhai 20
5 Satabhai Keshabhai 21
6 Samjuben Dharmsinhbhai 22
7 Vadabhai Ukabhai 23
8 Somabhai Kanabhai 28
9 Persotambhai Rachabhai 30
10 Naranbhai Merabhai 31
11 Bipin kalubhai 33
12 Vallavbhai Vasrambhai 34
13 Gangaben Jivabhai 37
14 Chnabhai Vadabhai 38
15 Shivabhai Vadabhai 39
16 Lilaben Kanjibhai 40
17 Lilaben Shivabhai 41
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18 Hansa Mithabhai 43
19 Jakalben Gandabhai 46
20 Kunvrabhai Hirabhai 47
21 Harsukhlal J.Shankerbhai 49
22 Prakramsinh Kanuva 52
23 Dr. Rajiv Hemraj 67
Description Exhibit
No.
complaint 17
List of documentary evidence 24
Inquest panchnama 25
Panchnama of scene of offence 29
Dropping pursis 48
Map 50
Report of registration of offence 53
Report of inquiry 55
Extract of station diary 56
Receipt of F.S.L. 61
Letter of F.S.L. 63
Letter of serological analysis 65
Opinion of serological analysis 66
Case paper of O.P.D. 68
P.M. Report 69
Form of blood sample 70
Closing pursis 71
2.1 After leading the evidence, the closure
pursis was submitted by the prosecution at Exhibit-71 and thereafter a further statement was recorded under Section 313 of the Code of Criminal Procedure at Exhibit 12 and since the offence was denied to have Page 4 of 29 HC-NIC Page 4 of 29 Created On Sun Aug 13 04:06:07 IST 2017 R/CR.A/1479/2006 JUDGMENT been committed, the prosecution has been initiated the process of proving the case on the basis of witnesses, which are referred hereinabove.
2.2 After consideration of the entire material and after considering the evidence on record, the learned second Additional District Judge, Rajkot vide judgment and order dated 08.03.2006 was pleased to grant benefit of doubt to the accused person and thereby acquitted the accused person from the charge of Section 302 read with Section 498(A) of Indian Penal Code and Section 135 of Bombay Police Act. It is against this judgment and order passed by the learned Additional Sessions Judge, the State has preferred present Criminal Appeal.
3. Learned APP Mr. Soni has vehemently contended that while passing the order of acquittal and granting benefit of doubt to the accused person, the learned Judge has not examined the material on record, nor has evaluated the evidence in its true perspective which supports the case of prosecution.
4. Learned APP has further contended that even the witnesses have become hostile in view of settled position of law, that portion of evidence can be examined and relied upon in so far it relates to and supports the case of prosecution and therefore, the learned Judge has committed serious error of jurisdiction.
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5. Mr. Soni, learned APP, has further
contended that even if the marriage span of more than 25 years, that ipso facto would not permit the learned Judge to ignore material piece of evidence, which was tried to be pressed to prove the case and therefore, while passing the judgment and order of acquittal, the serious error of jurisdiction have been committed.
6. Mr. Soni has further contended that initial question, which is occurred in the house itself and the incriminating circumstances which are reflecting on the basis of record, appears to have not been explained by the accused in further statement recorded under Section 313 of the Code of Criminal Procedure and therefore, in absence of any specific explanation not being offered by the accused, the evidence of prosecution ought not to have been ignored which supports the case of prosecution.
7. Learned APP has further contended that reasons which are assigned by the learned Judge are not germane to acquit and are not sufficient enough to grant benefit of doubt. On the contrary, the clear narration is reflecting on the record to prove that in which manner the offence is said to have been committed and therefore, on that context the evidence which has been laid by the prosecution ought to have been examined by the learned Judge.
8. Learned APP has, therefore, ultimately Page 6 of 29 HC-NIC Page 6 of 29 Created On Sun Aug 13 04:06:07 IST 2017 R/CR.A/1479/2006 JUDGMENT requested the Court to set aside the order of acquittal passed by the learned Judge and impose appropriate punishment by convicting the respondent accused. No further submissions have been made.
9. To oppose this stand taken by the learned APP, Mr. Umang H. Oza, learned advocate appearing for the respondent, has submitted that there is no sufficient evidence on record which would connect the accused to the commission of actual crime. It has also been contended that almost all witnesses have turned hostile and have not supported even the actual occurrence, which narrated in the case, as also not substantiated even on the basis of material and even if some piece of evidence is carved out from the hostile witnesses' version, then also the case is not being corroborated and therefore, in absence of such kind of weak piece of evidence no order of conviction can be passed.
10. Mr. Oza, learned advocate for the respondent has further contended that there are sufficient reasons assigned by the learned Judge to substantiate the finding which has been arrived at while passing the impugned judgment and order. The learned Judge has evaluated and examined the witnesses' version, which was recorded during the course of trial and therefore, on the basis of such kind of material, the conclusions, which have been arrived at, is rightly arrived at and there is no error committed by the learned Judge while passing Page 7 of 29 HC-NIC Page 7 of 29 Created On Sun Aug 13 04:06:07 IST 2017 R/CR.A/1479/2006 JUDGMENT the order, and therefore requested the Court to dismiss the appeal filed by the State.
11. Having heard learned counsel appearing for the parties and having gone through the material on record and upon independent analysis of the reasons and conclusions arrived at by the learned Judge the following conclusions, which are worth to be taken note of from the present proceedings.
(i) On the basis of overall material on record the evidence has revealed that there is no eye witness to the incident in question and the evidence which is laid before the trial, no witness has independently supported the version of the case of prosecution.
(ii) The record further indicates that there is no ample material found to justify the charge of Section 498(A) of Indian Penal Code.
(iii) Even the evidence of brother of accused, who was examined at Exhibit-16 has also not supported the case. On the contrary, from his cross-examination it is revealed that the marriage span between Mithabhai and Labhuben i.e. deceased was that of 25 years and during this long span of marriage at no point of time any cause of complaint had arisen, which constrained the family members of the deceased to lodge the complaint.Page 8 of 29
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(iv) It is also revealed from the evidence of witnesses i.e. Gandabhai Rajabhai at Exhibit-11 and Rudabhai Keshbhai at Exhibit-19 and other witnesses on the basis of whom the case of prosecution is not getting substantiated and those witnesses have declared hostile and their piece of evidence is also not remotely supporting the case of prosecution, as found by the learned second Additional Sessions Judge.
(v) From the material on record further it appears that father and mother of the deceased came to be examined by the prosecution at Exhibits 23 and 37 respectively, and from the evidence of these material witnesses also it has never been proved by prosecution at any point of time that during the span of 25 years there was any grievance voiced out or any ill treatment was meted out. In fact, on the basis of these evidence, the learned Judge has specifically found that during this long span of marriage life there was no complaint of ill treatment or of any grievance at the instance of respondent accused.
(vi) Further it has been found that on account of marriage of daughter Hansaben a quarral took place between deceased Labhuben and Mithabhai i.e. accused and on account of that, Mithabhai has given blow on the head of the deceased. But to prove this, the prosecution has initially treated Jairambhai as a witness, who said to have seen the commission of crime. But for some reason, this Jairambhai has not Page 9 of 29 HC-NIC Page 9 of 29 Created On Sun Aug 13 04:06:07 IST 2017 R/CR.A/1479/2006 JUDGMENT been examined and was dropped as a witness and therefore, in absence of any direct evidence connecting the respondent accused to this version of prosecution, the order of acquittal of accused appears to have been passed by the learned second Additional Sessions Judge. In addition thereto, from the clothes of the accused person blood stain have been found as it has been asserted in the case during the course of trial, but upon examination of those, the prosecution has not established that the blood group 'O' was found from these clothes and therefore, F.S.L. report is also not getting substantiated to the actual case which has been put up by the prosecution and therefore, on the basis of these materials, which has not supported the case of prosecution, it appears that learned Judge was constrained to pass the order of acquittal.
(vii) From the overall material on record even the main charge of Section 498(A) which has resulted into actual commission of crime has also not been proved beyond reasonable doubt and therefore, the order of acquittal came to be passed.
12. From the aforesaid material on record and the conclusion which has been arrived at by the learned Judge, we see no reason distinguishable to disturb the findings arrived at by the learned Second Additional District and Sessions Judge while passing the order of acquittal. We are mindful of the fact that the appellate Court has wide power of evaluate Page 10 of 29 HC-NIC Page 10 of 29 Created On Sun Aug 13 04:06:07 IST 2017 R/CR.A/1479/2006 JUDGMENT and even re-appreciate the evidence collected by the prosecution. But at the same time, the scope of appellate jurisdiction is not to review or re-analyze the entire evidence and therefore, the evidence on record of the present case is not substantially support the case of prosecution. We see no reason to interfere with the order of learned Sessions Judge considering the scope of appellate jurisdiction, which is well defined by series of decisions.
13. We may refer to some of the well defined proposition enunciated by the Supreme Court in respect of exercise of appellate jurisdiction and we deem it proper to incorporate the same in the present judgment which substantiates the conclusion which has been arrived at by us and therefore, same are reproduced hereinafter:
13.1 In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr., (2006) 6 SCC 39, the Apex Court has narrated the powers of High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:
"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded Page 11 of 29 HC-NIC Page 11 of 29 Created On Sun Aug 13 04:06:07 IST 2017 R/CR.A/1479/2006 JUDGMENT by the Court below."
13.2 Further, in the case of Chandrappa Vs. State of Karnataka, (2007) 4 S.C.C. 415, the Apex Court laid down the following principles;
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge:
[1] An appellate Court has full power to review, re-appreciate 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 curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis 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 Page 12 of 29 HC-NIC Page 12 of 29 Created On Sun Aug 13 04:06:07 IST 2017 R/CR.A/1479/2006 JUDGMENT 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."
13.3 In another decision delivered by the Supreme Court in case of Sureshkumar V/s. State of Haryana, reported in (2013) 16 SCC 353, it was observed that if two views are possible, the High Court should hold in favour of the accused and should not interfere with an order of acquittal. The relevant observations of the decision are reflected in Para.55, 56 and 57 which read as under :
"55. The second contention is that the High Court ought not to have interfered in the acquittal by the Trial Court. It was submitted that if two views are possible, the High Court should lean in favour of the accused and should not interfere with an acquittal.
56. few years ago, the law on the subject was culled out from a large number of decisions and summed up in Ghurey Lal v. State of U.P., (2008) 10 SCC 450 : (AIR 2009 SC (Supp) 1318 :
2008 AIR SCW 6598) as follows:
"1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the Page 13 of 29 HC-NIC Page 13 of 29 Created On Sun Aug 13 04:06:07 IST 2017 R/CR.A/1479/2006 JUDGMENT appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.
2.The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
3.Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence.
There must also be substantial and compelling reasons for holding that the trial court was wrong.
In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:
1.The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision.
"Very substantial and compelling reasons" exist when:
i.The trial court's conclusion with regard to the facts is palpably wrong;
ii.The trial court's decision was based on an erroneous view of law;
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iii.The trial court's judgment is likely to result in "grave miscarriage of justice";
iv.The entire approach of the trial court in dealing with the evidence was patently illegal;
v.The trial court's judgment was manifestly unjust and unreasonable;
vi.The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. vii.This list is intended to be illustrative, not exhaustive."
57. Learned counsel for Suresh Kumar referred to S. Anil Kumar v. State of Karnataka, (2013) 7 SCC 219 : (2013 AIR SCW 6180) particularly paragraph 14 of the Report wherein reliance was placed on Rohtash v. State of Haryana, (2012) 6 SCC 589 : (AIR 2012 SC 2297 : 2012 AIR SCW 3318) to conclude that it is "only in exceptional cases where there are compelling circumstances and where the judgment in appeal is found to be perverse, can the High Court interfere with the order of acquittal." In Rohtash it was further observed:
"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 innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (Vide State of Rajasthan v. Talevar, (2011) 11 SCC 666 : (AIR 2011 SC 2271 :
2011 AIR SCW 3889) Govindaraju v. State (2012) 4 SCC 722 : (AIR 2012 SC 1292 :Page 15 of 29
HC-NIC Page 15 of 29 Created On Sun Aug 13 04:06:07 IST 2017 R/CR.A/1479/2006 JUDGMENT 2012 AIR SCW 1994)."
13.4 The principle laid down in Chandrappa (supra) has been reiterated by Hon'ble Apex Court in case of Basappa Vs. State of Karnataka, reported in 2014(2) SCC (Cri)497. It has been held in paragraph 15 of the said decision as under:
"15. In this context, yet another caution struck by this Court in Chandrappa and others Vs. State of Karnataka, (2007) 4 SCC 415 would also be relevant.
42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge:
[1] An appellate Court has full power to review, re-appreciate 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 curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of Page 16 of 29 HC-NIC Page 16 of 29 Created On Sun Aug 13 04:06:07 IST 2017 R/CR.A/1479/2006 JUDGMENT 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."
13.5 The principle in Chandrappa (supra) has further been reiterated by Hon'ble Apex Court in the case of C.K.Dasegowda & Ors. Vs. State of Karnataka, reported in 2014(8) Scale 557 wherein it has been held in paragraph No.17 as under:
"17. In the case of Chandrappa and others Vs. State of Karnataka, (2007) 4 SCC 415, it has been held by this Court as under:
"39. In Harijana Thirupala v. Public Prosecutor, High Court of A.P. (AIR 2002 SC 2821 : 2002 AIR SCW 3199), this Court said:
12.Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its Page 17 of 29 HC-NIC Page 17 of 29 Created On Sun Aug 13 04:06:07 IST 2017 R/CR.A/1479/2006 JUDGMENT own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with the order of acquittal merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity.
40.In Ramanand Yadav v. Prabhunat Jha (AIR 2004 SC 1053 : 2003 AIR SCW 6731) this Court observed;
21. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases 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 paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of Page 18 of 29 HC-NIC Page 18 of 29 Created On Sun Aug 13 04:06:07 IST 2017 R/CR.A/1479/2006 JUDGMENT justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not".
41.Recently, in Kallu v. State of M.P. (AIR 2006 SC 831 : 2006 AIR SCW 177), this Court stated;
8. While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court".
(Emphasis supplied) 13.6 In yet another decision in the case of Ramaiah @ Rama Vs. State of Karnataka, 2014(9) SCC 365, it has been held by Hon'ble Apex Court that if two views are possible on the evidence adduced and Page 19 of 29 HC-NIC Page 19 of 29 Created On Sun Aug 13 04:06:07 IST 2017 R/CR.A/1479/2006 JUDGMENT the one favourable to the accused has been taken by the trial court, it should not be disturbed. It has been observed in paragraph Nos.30 and 31 as under:
"30. This very principle of law was formulated by the Court in M. Madhusudhan Rao (supra) in the following manner:
"13. There is no embargo on the appellate court to review, reappreciate or reconsider the evidence upon which the order of acquittal is founded. Yet, generally, the order of acquittal is not interfered with because the presumption of innocence, which is otherwise available to an accused under the fundamental principles of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a court of law, gets further reinforced and strengthened by his acquittal. It is also trite that if two views are possible on the evidence adduced in the case and the one favourable to the accused has been taken by the trial court, it should not be disturbed. Nevertheless, where the approach of the lower court in considering the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to the characterized as perverse, then, to prevent miscarriage of justice, the appellate court is obliged to interfere.
14. All these principles have been succinctly culled out by one of us (C.K. Thakker, J.) in Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415 : (AIR 2007 SC (Supp) 111 : 2007 AIR SCW Page 20 of 29 HC-NIC Page 20 of 29 Created On Sun Aug 13 04:06:07 IST 2017 R/CR.A/1479/2006 JUDGMENT 1850)".
31. In Chandrappa (supra), which was followed in the aforesaid case, the Court had observed:
"44. In our view, if in the light of above circumstances, the trial court felt that the accused could get 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 the appellate court are as wide as that of the trial court and it can review, reappreciate 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 present case, the view taken by the trial court for acquitting the accused was possible and plausible. On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is 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 trial court, it ought not to be disturbed by the appellate court. In this case, a possible view on the evidence of prosecution had been taken by the trial court which ought not to have been disturbed by the appellate court. The decision of the appellate court (the High Court), therefore, is liable to be set aside".
13.7 In the case of Upendra Pradhan Vs. State of Orissa, 2015(5) Scale 634, it has been held by Hon'ble Apex Court that when there are two views possible from the perusal of evidence and application of law, the view which favours the accused should be taken. Paragraph No.10 of the said Page 21 of 29 HC-NIC Page 21 of 29 Created On Sun Aug 13 04:06:07 IST 2017 R/CR.A/1479/2006 JUDGMENT decision reads thus:
"10. Taking the First question for consideration, we are of the view that in case there are two views which can be culled out from the perusal of evidence and application of law, the view which favours the accused should be taken. It has been recognized as a human right by this Court. In Narendra Singh and another v. State of M.P., (2004) 10 SCC 699 : (AIR 2004 SC 3249), this Court has recognized presumption of innocence as a human right and has gone on to say that:
"30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof. It is equally well settled that there is a long distance between 'may be' and 'must be'.
31. It is also well known that even in a case where a plea of alibi is raised, the burden of proof remains on the prosecution. Presumption of innocence is a human right. Such presumption gets stronger when a judgment of acquittal is passed. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a Higher Court (see Dhanna v. State of M.P., Mahabir Singh v. State of Haryana and Shailendra Pratap v. State of U.P.) which had not been adhered to by the High Court.
xxx xxx xxx xxx xxx
33. We, thus, having regard to the post- mortem report, are of the opinion that the cause of death of Bimla Bai although is shrouded in mistery but benefit thereof must go to the appellants as in the event of there being two possible views, the one supporting the accused should be upheld."Page 22 of 29
HC-NIC Page 22 of 29 Created On Sun Aug 13 04:06:07 IST 2017 R/CR.A/1479/2006 JUDGMENT 13.8 The Supreme Court in case of Golbar Hussain & Ors. V/s. State of Assam & Anr., reported in (2015) 11 SCC 242, has held in Para.6, 7 and 8 as under :
"6. The present case involves consideration on two issues. First being the powers of appellate Court while dealing with an appeal against an order of acquittal. Second, being the sufficiency of the testimonies of PW-4 and PW-5 to convict the accused persons without any corroboration from an independent witness and the relevancy of the statement of a hostile witness involving appreciation of the statement of PW-8 who turned hostile.
7.On the first issue, the legal principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal, have been reiterated by this Court in a catena of cases. This Court culled down five general principles in Chandrappa and Ors. vs. State of Karnataka, (2007) 4 SCC 415, as follows:
(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. Page 23 of 29 HC-NIC Page 23 of 29 Created On Sun Aug 13 04:06:07 IST 2017 R/CR.A/1479/2006 JUDGMENT 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 emphasis 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.
(Emphasis supplied)
8.The Court referred to Kallu alias Masih and Ors. vs. State of M.P., (2006) 10 SCC 313, in the above-
mentioned judgment, where it held that;
While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals the power exists Page 24 of 29 HC-NIC Page 24 of 29 Created On Sun Aug 13 04:06:07 IST 2017 R/CR.A/1479/2006 JUDGMENT to review the entire evidence.
However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate Court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial Court'."
13.9 Yet in another decision in case of Upendra Pradhan V/s. State of Orissa, reported in (2015) 11 SCC 124, the Supreme Court while dealing with an order of the High Court in acquitting appeal, has observed as under :
"14. Taking the First question for consideration, we are of the view that in case there are two views which can be culled out from the perusal of evidence and application of law, the view which favours the accused should be taken. It has been recognized as a human right by this Court. In Narendra Singh and another v. State of M.P., (2004) 10 SCC 699 : (AIR 2004 SC 3249), this Court has recognized presumption of innocence as a human right and has gone on to say that:
"30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof. It is equally well settled that there is a long distance between 'may Page 25 of 29 HC-NIC Page 25 of 29 Created On Sun Aug 13 04:06:07 IST 2017 R/CR.A/1479/2006 JUDGMENT be' and 'must be'.
31.It is also well known that even in a case where a plea of alibi is raised, the burden of proof remains on the prosecution. Presumption of innocence is a human right. Such presumption gets stronger when a judgment of acquittal is passed. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a Higher Court (see Dhanna v. State of M.P., Mahabir Singh v. State of Haryana and Shailendra Pratap v. State of U.P.) which had not been adhered to by the High Court.
xxx xxx xxx xxx xxx
33. We, thus, having regard to the post- mortem report, are of the opinion that the cause of death of Bimla Bai although is shrouded in mistery but benefit thereof must go to the appellants as in the event of there being two possible views, the one supporting the accused should be upheld."
(Emphasis Supplied)
15. The decision taken by this Court in the aforementioned case, has been further reiterated in State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 : (AIR 2003 SC 3601), wherein this Court observed thus:
"7. Generally the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases 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 Page 26 of 29 HC-NIC Page 26 of 29 Created On Sun Aug 13 04:06:07 IST 2017 R/CR.A/1479/2006 JUDGMENT accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, or the purpose of ascertaining as to whether any of the accused committed any offence or not. (see Bhagwan Singh v. State of M.P.) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference."(Emphasis Supplied).
16.Therefore, the argument of the learned counsel for the appellant that the High Court has erred in reversing the acquittal of accused appellant, stands good. The Additional Sessions Judge was right in granting him benefit of doubt.
The view which favours the
accused/appellant has to be
considered and we discard the
opposite view which indicates his guilt.
17.We are also of the view that the High Court should not have interfered with the decision taken by the Additional Session Judge, as the judgment passed was not manifestly illegal, perverse, and did not cause miscarriage of justice. On the scope of High Court's revisional jurisdiction, this Court has held in Bindeshwari Prasad Singh v. State of Bihar, (2002) 6 SCC 650 : (AIR 2002 SC Page 27 of 29 HC-NIC Page 27 of 29 Created On Sun Aug 13 04:06:07 IST 2017 R/CR.A/1479/2006 JUDGMENT 2907), "that in absence of any manifest illegality, perversity and miscarriage of justice, High Court would not be justified interfering with the concurrent finding of acquittal of the accused merely because on re-appreciation of evidence it found the testimony of PWs. to be reliable whereas the trial Court had taken an opposite view." This happens to be the situation in the matter before us and we are of the view that the High Court was wrong in interfering with the order of acquittal of Upendra Pradhan passed by the Additional Sessions Judge.
18.The Second ground pleaded before us by the counsel for the accused appellant, that the testimonies of P.W. 1 and P.W.7 should not have been considered, as they were interested witnesses, holds no teeth. We are of the opinion that the testimonies of interested witnesses are of great importance and weightage. No man would be willing to spare the real culprit and frame an innocent person. This view has been supplemented by the decision of this Court in Mohd.
Ishaque v. State of West Bengal, (2013) 14 SCC 581.
* * *
22.Therefore, in the light of the above discussion, we allow this appeal and set aside the impugned judgment and order passed by the High Court. The appellant has been released on bail vide this Court's order dated 15.04.2014. His bail bonds are discharged."
14. In view of the above position prevailing on record and in view of the aforesaid proposition of Page 28 of 29 HC-NIC Page 28 of 29 Created On Sun Aug 13 04:06:07 IST 2017 R/CR.A/1479/2006 JUDGMENT law, we are of the considered opinion that this is not a fit case to interfere with the order passed by the learned Additional Sessions Judge and accordingly appeal filed by the State being meritless deserves to be dismissed.
15. The appeal is dismissed. The judgment and order, dated 08.03.2006, passed in Sessions Case No.49 of 2005, by the Second Additional District Judge, Rajkot, is hereby confirmed. Bail bond shall stand discharged. Record and Proceedings be sent back to the trial court concerned, forthwith.
(S.R.BRAHMBHATT, J.) (A.J. SHASTRI, J.) Pankaj Page 29 of 29 HC-NIC Page 29 of 29 Created On Sun Aug 13 04:06:07 IST 2017