Gujarat High Court
State Of Gujarat vs Pappu Sundarlal Tank (Dhobi) on 6 June, 2024
NEUTRAL CITATION
R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1064 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
and
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
PAPPU SUNDARLAL TANK (DHOBI) & ORS.
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Appearance:
MS. DIVYAGNA JHALA, ADDL. PUBLIC PROSECUTOR for the Appellant(s)
No. 1 - State
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1,2,3,6,7,8
PETITION/APPEAL WITHDRAWN/DISMISSED for the
Opponent(s)/Respondent(s) No. 4,5
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
and
HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 06/06/2024
ORAL JUDGMENT
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NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined (PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)
1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 16.07.1999 passed by the learned Sessions Judge, Vadodara in Sessions Case No.214 of 1998, whereby the respondents herein - original accused came to be acquitted for the offences under Sections 395, 397, 120(B) and 216(A) of the Indian Penal Code, 1860 as well as under Section 25(1) of the Arms Act, 1959, the appellant - State has preferred present appeal under section 378 of the Code of Criminal Procedure, 1973 ("the Code" for short).
2. Brief facts of the prosecution are that as per the complaint of the complainant Ashokkumar Mavjibhai Mali, he stays with his family and he has been working as a driver in travel company named Lotus Travel Agency situated in Mumbai Ghatkopar area and he drove on Mumbai Nathdwara route. He is regular driver of company Luxury coach no. MH-02-T-140 and Balubhai Manilal is cleaner whereas Dalpatpuri Pratappuri is second driver with him.
2.1 On 01.08.1997, Friday, he left from Mumbai for Page 2 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined Ahmedabad at about ten o'clock in the night in Luxury Bus as per the instruction of his office, but due to heavy rain and traffic jam, he reached Vadodara at about four o'clock in the evening on 03.08.1998 and as it was not possible to drive the bus ahead towards Ahmedabad, he terminated bus at Vadodara and to return to Mumbai from Vadodara, his office manager Mr. Salimbhai contacted S.K. Travels, Vadodara and the bus was parked near the office of S.K. Travels situated opposite Vadodara S.T. Bus Stand.
2.2 At about half past ten o'clock in the night on 02.08.1997, he and his driver, conductor were about to leave with nineteen passengers including two children and three women in the bus, suddenly, staff of S.K. Travels rushed there with five persons and the staff of S.K. Travels told the complainant to stop the bus and said that these persons are to be taken to Mumbai and saying so, he made the said persons sit in the bus. They came to the highway to Mumbai and when they were leaving Jambuva Bridge at about half past eleven o'clock, at the last moment, two persons out of the said five persons came to his cabin and before reaching to the Page 3 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined police chowkey situated on the highway after Jambuva Bridge, the said two persons took out their revolver. Out of them, one person pointed the revolver on neck portion and another pointed on the portion of stomach, hurled abusive words to the complainant and asked him to turn the vehicle ahead on left and if you speak anything, I will shoot you. The complainant scared and stopped the vehicle at side. As per their say, he took the vehicle left side of the highway and moving about one hundred fifty to two hundred feet ahead, both the said persons told to stop the vehicle and he stopped the vehicle. One out of two persons took out the key of the vehicle, made the lights of front cabin and headlight off and made lights of the rear side of the bus on. At that time, his office staff Salimbhai was in his cabin, who also sit silently without any movement and he did not know as to which weapons other persons had. All the said three persons started talking in Hindi and Bihari language and they shouted that 'Give whatever you have, else you will be shot'. Thereby, they collected money from the passengers of the bus. At that time, out of them, one person armed with revolver near the cabin made one fire from his revolver towards the door and another fire out of the Page 4 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined bus, therefore, all the persons got scared. Rs.550/- were taken out from the upper pocket of the complainant and at that time, other persons were internally calling each other with names such as Sunil, Raju, Pappu and saying to expedite. A person standing near the complainant was 22 to 25 years old. All these five persons collected money and jewelries from the bus passengers and alighted the vehicle. Out of the said persons, one person pointed out his revolver to the complainant and told him to get off the bus in order to take key of the vehicle and therefore, the complainant got down with fear. All persons had revolver. One person gave key to the complainant and told that 'Close the door and sit in the vehicle, switch off the lights and start the vehicle after half hour. They are standing outside and if you will not do so, the bomb is placed below the vehicle, we will blast.' Upon saying so, the complainant boarded the bus and closed the door. Meanwhile, the said persons left the place.
2.3 Thereafter, as one scooter rider passed from the place after fifteen minutes, he and Salimbhai got down assuming that the said persons would have gone and Page 5 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined they say that none was there. Therefore, they stated the incident to the scooter rider and he advised to take the vehicle in the village, therefore, the complainant and passengers went to the Sundarpura village in the vehicle, where he came to know from the bus passengers that pointing out the revolver and threatening the most of the passengers of the bus, the said persons have usurped cash amount, watches, gold jewelry etc. 2.4 Thereafter, they returned to the highway with the said bus and when the police jeep came there, they informed them about the said incident. Thus, upon giving the complaint to the Sr. P.S.I., Varnama, the said complaint was registered at Zero Number of Varnama Police Station and forwarded to the Makarpura Police Station, where P.I. Mr. Rajendrasinh Rana registered the offense and took up the further investigation. He drew panchnama of scene of offense, recorded statements of the concerned witnesses, seized muddamal by way of panchnama, arrested the accused persons, sent the muddamal to the FSL, held identification parade and filed charge-sheet as there was sufficient evidence against the accused.
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NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined 2.5 The charge-sheet of the said offense was filed in the court of JMFC (Jr.), Vadodara and as he had not the jurisdiction to try the said offense, he committed the said case to this sessions court.
3. In pursuance of the complaint lodged by the complainant with the Makarpura Police Station, Baroda for the offence under Sections 395, 397, 120(B) and 216(A) of the Indian Penal Code, 1860 as well as under
Section 25(1) of the Arms Act, 1959, the investigating agency recorded statements of the witnesses, drawn panchnama of scene of offence, discovery and recovery of weapons and obtained FSL report for the purpose of proving the offence. After having found sufficient material against the respondents - accused, charge-sheet came to be filed in the Court of learned the JMFC, Vadodara. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Vadodara, as provided under Section 209 of the Code.
4. Upon committal of the case to the Sessions Court, Vadodara, the learned Sessions Judge framed charge at Exh.7 against the respondents accused for the aforesaid Page 7 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined offences. The respondents accused pleaded not guilty and claimed to be tried.
5. In order to bring home charge, the prosecution has examined 17 witnesses and also produced various documentary evidence before the learned trial court, more particularly described in para Nos.7 to 22 of the impugned judgment and order.
6. On conclusion of evidence on the part of the prosecution, the learned trial court put various incriminating circumstances appearing in the evidence to the respondents - accused so as to obtain explanation/answer as provided u/s 313 of the Code. In the further statement, the respondents - accused denied all incriminating circumstances appearing against them as false and further stated that they are innocent and false case has been filed against them.
7. We have heard learned APP Ms. Divyangna Jhala for the appellant - State and minutely examined oral and documentary evidence adduced before the learned trial court.
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8. Learned APP Ms. Divyangna Jhala for the appellant
- State has submitted that the trial Court has committed error by not considering the fact that the criminal case is proved beyond reasonable doubt and the trial Court has wrongly come to the conclusion that the prosecution has failed in proving the case as well as failed in proving that the accused were present during the commission of offence. She has further submitted that the learned trial Court ought to have seen that the prosecution has examined various witnesses but, none of the witnesses supported the prosecution case except the Investigation Officer and the Executive Magistrate. She has further submitted that the trial Court has not properly appreciated the oral testimony as well as the documentary evidence and trial Court has committed error in disbelieving the evidence of complainant- Ashokbhai Mavjibhai at Exh.18, though he has tried to support the prosecution case with regard to robbery. It is further submitted that the trial Court ought to have seen that the incident has taken place during night hours and therefore, accused persons are not identified by the complainant. The trial Court has also not properly appreciated the evidence of the Investigating Page 9 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined Officer at Exh.54, wherein, he has clearly stated that on 03.08.1997, he received the complaint against the respondents - accused and the statement of witnesses were recorded and Panchnamas were also drawn and identification was also arranged and there was sufficient evidence against them and therefore, charge-sheet is also filed. She has, therefore, submitted that such aspects are not properly considered by the trial Court and thereby, the learned trial Court has committed gross error in acquitting the accused persons and the present appeal requires consideration, by quashing the impugned judgment and order and passing appropriate order of conviction.
9. Though notice is served against some of the accused persons, but for the respondent Nos.4 and 5, notice remain unserved and therefore, proceedings were dismissed against respondent Nos.4 and 5, therefore, matter is considered for the rest of the accused persons. As nobody is appearing for the accused persons in defence, this Court heard the arguments advanced by the learned APP at length and also perused the necessary evidence from the paperbook as well as from the record of the case. After re-appreciating evidence available on Page 10 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined the record, this Court has considered the present appeal, finally.
10. This Court has considered the aspect that as per the case of prosecution, the charge is framed at Exh.7, whereby, it is the case of the prosecution that on 02.08.1997 at about 11:30 p.m. when the luxury bus of S.K. Travels was going from Vadodara to Mumbai having 29 passengers in the bus and during that time, accused No.3, has asked to switch-off all the lights of the bus in cabin of the bus and has asked to switch-on the lights in the backside of the cabin i.e. inside of the bus where the passengers were sitting. It is the case of the prosecution that other three accused persons who are sitting in the bus have started to threaten the passengers and have taken wrist watches, cameras, walkman, golden rings and cash amount, total sum of Rs.51,570/- was looted and the offence committed, is punishable under Section 395, 397, 120(B), 216(A) of the IPC and under Section 25(1) of the Arms Act. In the charge it is also stated that after robbing these items, the accused persons ran away with the help of one motorcycle and two scooters.
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NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined 10.1 Thereafter, the evidence is recorded, the complainant- Ashokbhai Mavjibhai was examined at Exh.18, who is the driver of the bus and from his deposition, it transpires that, he has stated that when the bus was going to Mumbai from Vadodara with 29 passengers in the bus, two passengers sitting in the bus got up and came to his cabin and thereafter, they have put gun on his neck and thereafter, said "do not move"
and they directed him to take the bus to some other place. After switching-off all the lights of the cabin and switching-on the lights in the rest of the bus, they have looted the passengers and thereafter, giving threat about the time-bomb put in the bus, the accused persons ran away from the place of incident and this fact is not exactly tallied with the facts narrated in the charge, there are four persons mentioned and one person has come to the driver, there is no whisper about the Pistol or Revolver or Firearm shown by the accused persons to the driver. Therefore, there is a case of improvisation and case is put up by the prosecution beyond the facts narrated in the charge. It also transpires from the deposition of the driver that he could not identify the accused person who had put gun on his neck as, at that Page 12 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined point of time, there was darkness. Thereafter, the other witnesses, the Panch witnesses also turned hostile and they are not supporting the Panchnamas. It also transpires that the Investigating Officer, who has carried out investigation is also not giving any material, except the fact that how he carried out the investigation and arranged for the Test Identification Parade. The person who was called as witness in the Test Identification Parade is examined at Exh.48, but he turned hostile. Even, other person- Manoj Gulamsinh Pardeshi examined at Exh.52, who was called in the I.T.Parade Panchnama also turned hostile. The person- Chandrakant K. Patel, Executive Magistrate, Vadodara who was examined at Exh.53, also narrated version that how he had carried out the Test Identification Parade of the witnesses, who were arranged by the Police and also arrangement of the complainant, though, he was not in a position to identify the accused persons, therefore, the Test Identification Parade also does not speak much.
10.2 However, it is also revealed from the record that when the Test Identification Parade was arranged, the deposition of the Executive Magistrate indicates that Page 13 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined the T.I. Parade had started at 8:30 a.m. in the morning, before that accused persons were called and made to be seated in the room No.220 of the Narmada Bhavan. In the room No.218, Panchas were available. It also transpires that respondents herein - original accused were sitting the chamber and complainant was standing outside the room No.216 in the lobby and, therefore, when the accused persons were brought by the Police, they were seen by the complainant. Therefore, the Test Identification Parade was not properly held. Panchnama is not giving necessary details regarding the fact that, how the accused persons were kept in line, whether they were asked to change the clothes, all these things are not supported by the deposition of the Executive Magistrate, complainant and/or the Panch witnesses. Otherwise also, in view of the absence of any independent witnesses, when the deposition of the complainant is also having material contradictions and inconsistencies. Even in the case of prosecution, there are several contradictions and inconsistencies and therefore, the learned trial Court has rightly come to the conclusion that the respondents - accused persons are not properly identified as required under the law. Even Page 14 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined otherwise, Test Identification Parade is a weak piece of evidence in absence of any strong independent material evidence available on record. The Test Identification Parade found to be not properly held in view of the settled position of law. Therefore, the learned trial Court has rightly come to the conclusion by acquitting the respondents - original accused as the prosecution has failed to prove its case beyond reasonable doubt and the learned trial Court has come to the conclusion that the respondents - original accused are not properly identified and benefit of doubt is required to be given to the respondents herein - original accused.
10.3 In view of the scope of acquittal appeal, for which, the legal position is discussed hereinafter. We are of the opinion that there is no reason for this Court, even after re-appreciating the entire evidence, to interfere and to upset the findings given by the trial Court and the trial Court has not committed any error in acquitting the accused persons.
10.4 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 Page 15 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined its own view by reversing the acquittal into conviction, unless the findings of the learned 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, learned APP for the appellant 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.
10.5 It is fruitful to refer the provisions of Sections 395, 397, 120(B) and 216(A) of the Indian Penal Code, 1860 as well as Section 25(1) of the Arms Act, 1959, which are as under:
"395. Punishment for dacoity.--
Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.--
If, at the time of committing robbery or dacoity, the Page 16 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
120B. Punishment of criminal conspiracy.--(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.] 216A. Penalty for harbouring robbers or dacoits Whoever, knowing or having reason to believe that any persons are about to commit or have recently committed robbery or dacoity, harbours them or any of them, with the intention of facilitating the commission of such robbery or dacoity or of screening them or any of them from punishment, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
25. Punishment for certain offences.― (1) Whoever-- (a) manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or Page 17 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6; or
(d) brings into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine."
10.6 It is also relevant to refer the provisions of Section 378 of the Code, as under:
"Section 378 in The Code of Criminal Procedure, 1973:-
378. Appeal in case of acquittal.
[(1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5),-
(a) the District Magistrate may in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognisable and non-bailable offence;
(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause(a)] or an order of acquittal passed by the Court of Session in revision.] (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Page 18 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, [the Central Government may subject to the provisions of sub-Section (3), also direct the Public Prosecutor to present an appeal-
(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognisable and non- bailable offence;
(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision. (3) No appeal to the High Court] [Substituted by Act 25 of 2005, Section 32, for "No appeal" (w.e.f. 23-6-2006).] under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.
(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant and sixty days in every other case, computed from the date of Page 19 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined that order of acquittal.
(6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2)."
10.7 In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280, Supreme Court has held as under:
"The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."
10.8 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 Page 20 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined 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.
10.9 Scope and interference by the appellate Court in acquittal appeal is very limited. The Hon'ble Privy Council has discussed the scope and interference in acquittal appeal in the case of Sheo Swarup v. King Emperor, AIR 1934 PC 227 and held as under:-
"While dealing with an appeal against acquittal, the High Court should and will always give proper weight and consideration to such matters as-
(1) the views of the trial Judge as to the credibility of the witnesses;
(2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial;
(3) the right of the accused to the benefit of any doubt;
and the slowness of an appellate court in disturbing a Page 21 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."
10.10 Further, considering the law laid down in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka, reported in 2024 SCC OnLine SC 561, every criminal trial starts with general presumption and one of the cardinal principle of criminal jurisprudence is that, there is a presumption of innocence in favour of the accused, unless proven guilty. Burden of proving the case of the prosecution always rests on the shoulder of the prosecution. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence, which gathers strength before the appellate Court.
10.11 Further, considering the law laid down by the Hon'ble Supreme Court in the case of Jafar v. State of Kerala reported in 2024 LiveLaw (SC) 238, wherein, relevant paragraph Nos.5 to 7, read as under:
"5. With the assistance of the learned counsel for the parties, we have scrutinized the evidence. The conviction of the appellant herein is basically based on the deposition of Babu Puttan (PW-1), who was working as a security guard and was sitting in a chair in front of the said room. No doubt that he narrates the version, as per the prosecution case. He has also identified accused No.2-Jafar, appellant Page 22 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined herein andaccused no.3-Saneesh in the Court. However, he has clearly admitted that police had shown him these two people and as such, he has identified them.
6. Anil Kumar (PW-8), who is the Investigating Officer (IO), has also admitted that PW-1 identified the accused persons by seeing them at the police station. He has further admitted that no identification parade was conducted. As such, it can be seen that the identification of the appellant herein by PW1 is quite doubtful as no identification parade has been conducted. PW-1 clearly states that he has identified the accused persons since the police had shown him those two people.
7. In the absence of proper identification parade being conducted, the identification for the first time in the Court cannot be said to be free from doubt. We find that the other circumstance that the Courts relied for resting the order of conviction is with regard to the recovery of an iron rod. An iron rod is an article which could be found anywhere. It is not the case of the prosecution that any stolen article was recovered from the appellant herein."
10.12 It is also relevant to note that the Hon'ble Apex Court has time and again considered the aspect of consideration of appeal against the order of acquittal under the provisions of Section 378 of the Code and interference by the higher Court, and exercise of such power is well established by the recent judgment of the Hon'ble Apex Court in the case of Mallappa and Others vs. State of Karnataka reported in (2024) 3 SCC 544, Page 23 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined and, the relevant observations are as under:
"25. We may firstly discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused ase ends in acquittal. The presumption of innocence gets concretized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accusedwas not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.
26. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to re- appreciate or re-visit the evidence on record. However, the power of the High Court to re-appreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the Trial Court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.
27. It may be noted that the possibility of two views in a criminal case Page 24 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined is not an extraordinary phenomenon. The 'two-views theory' has been judicially recognized by the Courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the Trial Court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eyes of law.
28. In Selvaraj v. State of Karnataka, "
13. Considering the reasons given by the trial court and on appraisal of the evidence, in our considered view, the view taken by the trial court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [(2002) 9 SCC 639] has laid down that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus:
"9. ...We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of Page 25 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal."
(emphasis supplied)
29. In Sanjeev v. State of H.P., the Hon'ble Supreme Court analyzed the relevant decisions and summarized the approach of the appellate Court while deciding an appeal from the order of acquittal. It observed thus:
"7. It is well settled that:
7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with, in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka5, Anwar Ali v. State of H.P.6) 7.2. With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P.7) 7.3. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala8)"........
....39. Pertinently, the Trial Court had reached its decision after a thorough appreciation of evidence and we have no doubt in observing that the view taken by the Trial Court was indeed a legally permissible view. The High Court went on to reverse the decision by taking its own view on a fresh appreciation of evidence. Moreover, the High Court did Page 26 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined so without recording any illegality, error of law or of fact in the decision of the Trial Court. In our considered view, the same was not permissible for the High Court, in light of the law discussed above. Setting aside an order of acquittal, which signifies a stronger presumption of innocence, on a mere change of opinion is not permissible. A low standard for turning an acquittal into conviction would be fraught with the danger of failure of justice.
40. So far as the question of independent appreciation of evidence by the High Court is concerned, be it noted that the High Court was fully empowered to do so, but in doing so, it ought to have appreciated the evidence in a thorough manner. In the present case, the High Court has not done so. Even the aspects discussed by the Trial Court have not been fully addressed and the High Court merely relied on a limited set of facts to arrive at a finding. The factors which raised reasonable doubts in the case of the prosecution were ignored by the High Court. For instance, the contradictions pertaining to time, which were carefully analyzed by the Trial Court, were not examined by the High Court at all. Similarly, the contradictions qua the nature of injuries were also not discussed. In an appeal, as much as in a trial, appreciation of evidence essentially requires a holistic view and not a myopic view. Appreciation of evidence requires sifting and weighing of material facts against each other and a conclusion of guilt could be arrived at only when the entire set of facts, lined together, points towards the only conclusion of guilt. Appreciation of partial evidence is no appreciation at all, and is bound to lead to absurd results.
41. A word of caution in this regard was sounded by this Court in Sanwat Singh v. State of Rajasthan, wherein it was observed thus:
"9. The foregoing discussion yields the following results : (1) an appellate court has full power to review the evidence upon which the order of Page 27 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined acquittal is founded; (2) the principles laid down in Sheo Swarup case [LR 61 IA 398] afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and
(iii) "strong reasons", are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified."
(emphasis supplied)
42. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:
(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive - inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal Page 28 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court."
11. In view of the above decision, we found that the learned trial Court has not committed any error in giving its findings and the findings of the learned trial Court are in accordance with the material available on the record. The learned trial court has come to its findings after properly appreciating and analyzing the documentary as well as the oral evidence available on the record. Hence, we found that there is no perversity and/or illegality in the findings of the learned trial Court. In our view, the learned trial Court has not committed any error by giving the benefit of doubt to the respondents herein - original accused as the prosecution has failed to prove its case by way of giving proper and convincing evidence and establishing the case beyond reasonable doubt and, therefore, the present appeal is required to be dismissed.
12. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Page 29 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024 NEUTRAL CITATION R/CR.A/1064/1999 JUDGMENT DATED: 06/06/2024 undefined 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 as the learned trial court has rightly given cogent and convincing reasons for acquitting the present respondents - original accused.
13. In view of the above and for the foregoing reasons, present Criminal Appeal deserves to be dismissed and is, accordingly, dismissed.
14. Accordingly, the impugned judgment and order of acquittal dated 16.07.1999 passed by the learned Sessions Judge, Vadodara in Sessions Case No.214 of 1998 is hereby confirmed.
15. Record and Proceedings be sent back forthwith to the concerned trial court. Bail and bail bond, if any, stands cancelled. Surety also, if any given, stands discharged.
(SANDEEP N. BHATT,J) (J. C. DOSHI,J) SLOCK BAROT Page 30 of 30 Downloaded on : Fri Jun 07 21:14:58 IST 2024