Gujarat High Court
State Of Gujarat vs Nareshbhai Sursinh Mina (Kalaswa) on 2 December, 2024
NEUTRAL CITATION
R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1638 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
NO
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STATE OF GUJARAT
Versus
NARESHBHAI SURSINH MINA (KALASWA)
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Appearance:
MS JYOTI BHATT, ADDL. PUBLIC PROSECUTOR for the Appellant(s) No. 1
MR PP KASWALA FOR MR BC DAVE(245) for the
Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 02/12/2024
ORAL JUDGMENT
1. The present appeal is filed by the appellant - State of Gujarat (original complainant) under Section 378 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") against the judgment and order of acquittal dated 01/05/2009 passed by the learned Additional Sessions Judge, Fast Track Court No.4, Himmatnagar camp at Idar (hereinafter referred to as "the trial court") in Sessions Case No.125 of 2008, whereby, the learned Page 1 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined Trial Judge has acquitted the original accused respondent herein for the offence punishable under Sections 498A, 306 and 506(2) of the Indian Penal Code (for short "the IPC").
2. The brief facts giving rise to the present appeal are as under :
2.1 At about 16:30 hours, at Bhiloda Cottage Hospital Quarter, the respondent accused was causing mental and physical harassment to the deceased daughter of the informant Dr. Gloriyaben, who was aged about 37 years, since last 12 years and also by beating her very often and insulting her and the respondent accused subjected her to cruelty, thereby, induced her to commit suicide, and thereby, committed offences punishable under Sections 306 and 498(A) the Indian Penal Code. The respondent accused also threatened to commit murder of the deceased Dr.Gloriyaben, and thereby, committed offences punishable under Section 506(2) the Indian Penal Code. The respondent herein was charged for the offence punishable under Sections 306, 498 [A] and 506(2) of Indian Penal Code. The complainant Vishrambhai Valjibhai Pandav father of the deceased therefore, registered a complaint against the respondent accused with Bhiloda Police Page 2 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined Station, Sabarkantha for the offence punishable under Sections 306, 498 (A) and 506 (2) of the Indian Penal Code.
2.2 Upon such complaint, investigation was commenced and on conclusion of the investigation, on the basis of the material collected against the respondent-accused, since the Investigating Officer found a prima-facie case against the respondent-accused, charge-sheet came to be filed before the learned Judicial Magistrate First Class, Idar for the offence punishable under Sections 498(A), 306 and 506(2) of the Indian Penal Code.
2.3 As the case was exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class, Dhoraji committed the case to Sessions Court under Section 209 of the Criminal Procedure Code, which came to be numbered as Sessions Case No. 125 of 2008. Thereafter, charge was framed at Exh.-5 by the learned Sessions Judge against the respondent-accused for the offence punishable under Sections 498(A), 306 and 506(2) of Indian Penal Code. The accused pleaded not guilty to the charge and claimed to be tried. The prosecution, therefore, led evidence.Page 3 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024
NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined 2.4 In order to bring home charge, the prosecution has examined as many as 10 witnesses as well as produced several documentary evidences on the record of the case, which are as under :
ORAL EVIDENCES :
Sr. No. Exhibit Name of witness
1. 09 Dr. Manishbhai Amraji Suvera
2. 20 Dr. Piyushkumar Raghjibhai Patel
3. 24 Vishrambhai Valjibhai Pandav
4. 26 Aliyal Sunil Vishrambhai Pandav
5. 30 Abhishekbhai Nareshbhai Kalashva
6. 31 Salubhai Nanjibhai Asari
7. 35 Dr. Girishkumar Kohyabhai Amin
8. 38 Virabhai Karshanbhai, Buckle No. 619
9. 41 Dipak Ramanbhai Bhatiya
10. 49 Keshabhai Punjabhai Patel
DOCUMENTARY EVIDENCES :
Sr. No. Exhibit Description of the document
1. 25 Original complaint
2. 32 Inquest Panchnama
3. 33 Panchnama of the place of offense.
4. 34 Panchnama of seizure of muddamal from the
place of offense.
5. 27 Declaration given by Aliyalben
6. 28 Receipt of handing over the dead body.
7. 29 Receipt regarding articles found from the
dead body.
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NEUTRAL CITATION
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8. 11 Cause of death certificate
9. 12 Postmortem Report
10. 13 Forwarding letter for sending samples.
11. 42 Office copy of Yadi sent to receive treatment
certificate of Gitaben.
12. 36 Treatment file of Gitaben
13. 37 Treatment certificate
14. 43 Office copy of dispatch note for forwarding
the muddamal to FSL
15. 44 Acknowledgment receipt of muddamal issued
by FSL
16. 45 Acknowledgment receipt of muddamal issued
by FSL
17. 46 FSL Report
18. 47 Letter and report of FSL
19. 48 Report and Letter of FSL
20. 50 Index letter and order passed thereon
21. 21 Original treatment certificate
22. 10 Yadi written by PSI of Bhiloda to Medical
Officer, Bhiloda
23. 14 Office copy for forwarding viscera
24. 16, 17 Form used for postmortem examination
report at the time of sending viscera for
chemical analysis
25. 22 Case paper of Gloriaben
26. 23 Police Yadi
27. 40, 39 Copy of Station Diary
28. 53 Dispatch Note for forwarding muddamal
29. 54 Dispatch Note for forwarding muddamal
30. 55 Report of the place of offense.
2.5 After closing the evidence and hearing the respondent-
accused under Section 313 of Cr.P.C., the Additional Sessions Page 5 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined Judge, Fast Track Court No.4, Himmatnagar Camp at Idar acquitted the present respondent from the said charges, which were framed against him by impugned judgment and order dated 01/05/2009 passed in Sessions Case No.125 of 2008.
2.6 Being aggrieved and dissatisfied with the Judgment and Order of acquittal dated 01/05/2009 passed by the learned Additional Sessions Judge, Fast Track Court No.4, Himmatnagar camp at Idar in Sessions Case No.125 of 2008, the appellant -
State of Gujarat has filed the present appeal under Section 378 of the Code of Criminal Procedure, 1973.
3. Heard learned Additional Public Prosecutor Ms.Jyoti Bhatt, appearing on behalf of the appellant - State of Gujarat and learned advocate Mr.P.P. Kaswala appearing on behalf of Mr.B.C. Dave, learned advocate for the respondent - original accused.
4. On perusal of the record of the trial court and the judgment impugned under challenge, learned APP Ms.Bhatt adhered the contentions on behalf of the appellant State that the deceased was given mental and physical torture by the Page 6 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined respondent accused and ultimately, the deceased was dragged to commit suicide by taking some poisonous substance. She has submitted that in fact, the witnesses have supported the case of the prosecution and in view of that the trial court ought to have appreciated the evidence in its true and proper spirit, however, the trial court has committed a serious error of law and on facts. She has submitted that the prosecution has examined the witnesses, whereby, the allegations against the respondent accused were proved beyond reasonable doubts, however, the trial court has not appreciated the same while passing the impugned judgment and order of acquittal.
Learned APP Ms.Bhatt has also further drawn the attention of this Court to the depositions of the informant Vishrambhai Valjibhai Pandav PW-3 (Exh.-24), brother of the deceased namely, Aliyalsunil Vishrambhai Pandav PW-4 (Exh.-26) and son of the deceased Abhishekbhai Nareshbhai Kalasva PW-5 (Exh.-30), who had in categorical terms deposed against the respondent accused and from the bare reading of the depositions of those witnesses, the prosecution has established that the respondent accused was giving ill treatment and mental and physical torture to the deceased and on account of which, the deceased had committed suicide Page 7 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined in suspicious condition. It is also further submitted by learned APP Ms.Bhatt that though all the relevant material suggest that the respondent accused has committed the offence as charged against him, however, the trial court has discarded the evidence of all the witnesses while passing the impugned judgment and order of acquittal. She has further submitted that the cause of the death was uncertain and therefore, the trial court has committed a serious error of law and on facts while considering these aspects and therefore, the impugned judgment and order of acquittal is bad in law, illegal and erroneous.
4.1 Learned APP Ms.Bhatt has further submitted that the deposition of PW-7 Dr.Girishkumar Kohyabhai Amin, who was a practicing doctor as Gynecologist, who had examined Gitaben Nareshbhai Kalasva on 12/01/2008 and during her examination, the said witness had confirmed that Gitaben was carrying pregnancy of four months and he had also issued treatment certificate dated 30/05/2008 (Exh.-37) of the said Gitaben, thereby learned APP tried to establish the allegations qua illicit relationship with Gitaben and that fact was supported by the deposition of PW-7 and the certificate issued by the said Page 8 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined witness and therefore, she has submitted that the prosecution was able to prove the charge against the respondent accused with regard to offence punishable under Section 498A, however, without considering all these aspects, the trial court has passed the impugned judgment and order of acquittal. She has submitted that the deceased was a doctor having post as well as MBBS decree and the deceased was aged about 37 years and having one son and one daughter. Such an educated lady would not have committed suicide living her minor innocent children making orphan at the mercy of the world.
Learned APP Ms.Bhatt has therefore, urged that the present appeal be allowed and the impugned judgment and order of acquittal, being erroneous illegal and unjust, is required to be quashed and set aside.
5. As against that, learned advocate Mr.P.P. Kaswala, appearing on behalf of Mr.B.C. Dave, learned advocate for the respondent accused, has submitted that the impugned judgment and order of acquittal passed by the trial court is in consonance with the settled principles of law. He ha submitted that after considering the documentary evidence and after considering the evidence of the witnesses, the trial court has Page 9 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined rightly passed the impugned judgment and order of acquittal, which is not required to be disturbed in the present appeal. He has further submitted that it is borne out from the evidence of the witnesses that the death of the deceased was a natural death due to her illness since she was suffering from tuberculosis. He has further submitted that PW-1 and 2 being doctors, who had performed post-mortem of the deceased, have specifically stated before the court that the deceased was suffering from tuberculosis and due to complications, she died a natural death and they had also sent viscera to FSL to get exact cause for death of the deceased. He has further submitted that from the FSL report also, it was confirmed that the death of the deceased was a natural death and no poisonous substance was found from the viscera and therefore, the allegations made against the present respondent accused by the informant and his relatives is nullified from the depositions of the said PW-1 and 2 and is absolutely base-less. He has submitted that the marriage of the deceased and respondent accused was solemnized before about 19 years of the alleged incident against the wish and will of the informant and his family members and it is also revealed from the depositions of the witnesses that the informant and Page 10 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined his family members were not keeping relation with the deceased and the respondent. He has submitted that it is also revealed from the deposition of PW-5 Abhishekbhai that the informant and his maternal uncle used to visit the house of the deceased in absence of the respondent, meaning thereby, the complaint was filed by the informant with a vengeance to involve the respondent accused in a serious crime in question, in fact, PW-5 being the son of the deceased and the respondent herein, who had tried to make bald allegations against the respondent accused, has admitted in his cross-
examination that all these allegations were made before the trial court for the first time and it was not disclosed before the police at the time of recording statements under Section 161 of Cr.P.C. and therefore, from all these exaggerations and omissions in the depositions of the witnesses, it is proved that the respondent is falsely implicated in the alleged offence though the deceased had died a natural death on account of her illness, however, the FIR was filed by the informant being the father of the deceased for the alleged offence under Section 306, 498A and 506(2) of IPC.
5.1 In support of his submissions, learned advocate Page 11 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined Mr.Kaswala has referred and relied upon the decisions of this Court rendered in case of State of Gujarat vs. Bharatbhai Balubhai Lad & Ors., reported in [2006] GLR (47) 514, wherein, it has been observed and held as under :
"7. So far as the abatement made by the accused to the deceased to commit suicide is concerned, according to us, there is no evidence. It is a settled legal provision of law that for bringing home the charge under Section 306 of IPC, there must be some evidence adduced on record showing that soon before the incident there was some harassment and torture to the deceased at the hands of the accused. Section 107 of IPC is with regard to the abetment and as per the provisions of this section, there must be some evidence that soon before the incident there must be some incident due to which she was prompted, instigated or abetted to commit suicide.
8. So far as the reported decision laying down the proposition of law on the question of abatement to commit suicide is concerned, they are legion. However, we would not make a reference to all of them with a view to avoid the repetition and to burden this judgment. Some of the reported recent decisions are as under :-
(i) In case of Sushil Kumar Sharma v. Union of India reported in 2005 AIR SCW p.3569, the Supreme Court makes it very abundantly clear that mere harassment or cruelty by the husband or his relatives would not constitute an offence of abetting the commission of suicide. Supreme Court in four lines has explained the correct position of law very succinctly. The relevant paragraph is reproduced herein below :
"Basic difference between the two Sections i.e. Section 306 and Section 498-A is that of intention. Under the latter, cruelty committed by the husband or his relations drag the women concerned to commit suicide while under the former provision suicide is abetted and intended."
In the instant case, the prosecution at best can argue that whatever has been said by each of the witnesses so far as the harassment meted towards the deceased is concerned dragged the deceased to commit suicide but there is not an iota of evidence to even remotely suggest that the accused persons ever intended the Page 12 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined consequences of the act or they abetted the commission of suicide.
(ii) In Swamy Prahaladdas v. State of M.P. and Anr. Reported in 1995 Supp.(3) SCC p.438, the appellant was charged for an offence under Section 306, IPC on the ground that the appellant during the quarrel is said to have remarked the deceased 'to go and die'. The Supreme Court was of the view that mere words uttered by the accused to the deceased 'to go and die' were not even prima-facie enough to instigate the deceased to commit suicide.
(iii) In Mahendrasinh v. State of M.P. reported in 1995 Supp. (3) SCC p.731, the appellant was charged for an offence under Section 306 IPC mainly based upon the dying declaration of the deceased, which reads as under:-
"My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry second time. He has illicit connections with my sister-in-law. Because of those reasons and being harassed I want to die by burning."
The Supreme Court, considering the definition of 'abetment' under Section 107 IPC found that the charge and conviction of the appellant for an offence under Section 306 is not sustainable merely on the allegation of harassment to the deceased. The Supreme Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased.
(iv) In Ramesh Kumar v. State of Chhattisgarh , the Supreme Court while considering the charge framed and the conviction for an offence under Section 306 IPC on the basis of dying declaration recorded by an Executive Magistrate, in which she had stated that previously there had been quarrel between the deceased and her husband on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set fire, acquitting the accused the Supreme Court said :-
"A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be Page 13 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined satisfied for basing a finding that the accused charged for abetting the offence of suicide should be found guilty."
(v) In Sanju alias Sanjay Singh Sengar v. State of Madhya Pradesh 2002 AIR SCW 2035 (SC), the Supreme Court in para 13 has observed as under :-
"Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the word uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional."
9.The principle of law which has been explained in each of the above referred judgments of the Supreme Court is that before a person can be held guilty for abetting the commission of suicide, the prosecution must establish by cogent, convincing and overwhelming evidence that the accused intended the consequences of the act namely suicide and abetted the suicide within the meaning of Section 107 of IPC. Mere harassment or cruelty which drags the woman to commit suicide is not sufficient to constitute the offence under Section 306 of IPC.
10. Applying the principle laid down by the Supreme Court in above referred to judgments to the facts of instant case, we are of the considered opinion that mere allegations which are general in nature with regard to the deceased was subjected to mental and physical cruelty at the hands of the accused, offence under Section 306 cannot be proved.
11. Now, coming to charge under Section 498-A of the IPC i.e. Cruelty, it requires to be appreciated that it speaks of cruelty by husband or the relatives of the husband. The first part of this Section provides for the punishment for the person, namely the husband or the relative of the husband of a woman who subjects the woman to cruelty. Explanation makes it clear as to what meaning would be given to the term 'cruelty'. Explanation (a) says that any willful conduct which is of such a nature as is likely to drive the woman to commit the suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman would amount to cruelty. Explanation (b) says that cruelty would mean the harassment of the woman with a view to coercing her or Page 14 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
(a) The evidence of PW-1, Vinodbhai Ranchhodbhai Mistry, the first informant, is at Ex.20. He has inter alia testified that initially for a period of three months the relations of the deceased with accused No. 1 husband was cordial and the other accused persons also used to treat the deceased cordially. Thereafter, all accused persons started finding fault with the deceased on trivial matters like household work and also used to beat the deceased. The first informant in his evidence says that he was informed about this harassment by her mother in law when the deceased for the first time informed her mother at her parental home. The evidence of the first informant so far as harassment to deceased is concerned, is hearsay because he admits that he learnt it through her mother in law.
(b) The evidence of PW-3, Nileshbhai Umedbhai Patel, Ex. 25, is to the effect that he is the next door neighbour of the parents of the deceased. This witness says that the deceased used to frequently visit his house and used to tell him that her in-laws are harassing her. This witness speaks about the so called oral dying declaration made by the deceased stating that she cannot live anymore. This witness speaks about the telephonic conversation between the deceased and accused No. 1 on the date of the incident. Beyond this, this witness does not say anything.
(c) PW-5, Jigishaben Sumanbhai Mistry, sister of the deceased, Ex.27, in her evidence has stated about the harassment meted by the accused persons towards her deceased sister. The allegations are general in nature.
12. It is settled principles of law so far as Section 498-A IPC is concerned that to constitute an offence of cruelty as explained under Section 498-A of IPC, willful conduct which is of such a nature as is likely to drive the woman to commit the suicide should be cogently established to hold the accused persons guilty of the said offence. In the instant case, there was no demand for dowry nor abetment of suicide nor cruelty to the deceased is established. Some unhappy note / incident during the short married life between the husband and the wife cannot be the circumstance to constitute an offence of cruelty or harassment within the meaning of Section 498-A IPC.
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13. The law so far as Section 498-A IPC is concerned needs to be examined considering the following two decisions of the Supreme Court :-
(i) Gananath Patnayak v. State of Orissa 2002 SCC (Criminal) 461.
(ii) Inderpal v. State of M.P. 2002 Cri.L.J. 926.
14. The ratio of both the decisions is to the effect that all the statements made by the deceased to her family members regarding the alleged harassment and cruelty meted towards her would fall within the purview of hearsay evidence. It is an admitted fact that none of the witnesses examined by the prosecution have said that they have with their eyes seen the accused persons assaulting the deceased or treating her with cruelty. All the witnesses have deposed on the strength of the information which the deceased used to provide when she used to come at her parental home. Such a statement is not admissible in evidence for the offence punishable under Section 498-A of IPC and has to be termed as being only a hearsay evidence.
21. On overall view of the matter, according to us, the evidence of PW-3, Nileshbhai Patel, does not inspire any confidence. It has to be held that when the deceased was not in a physical state of affairs to utter a single word, the alleged oral dying declaration made by the deceased before him is nothing but an afterthought by the prosecution and Nileshbhai has stated the version of oral dying declaration just with a view to favour the complainant and prosecution. Therefore, according to us, the prosecution has failed to prove the charges levelled against the accused as there is no evidence against the accused to connect them with alleged crime.
23. This is an acquittal appeal. The principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the Trial Court have been very succinctly explained by the Supreme Court in the matter of Ajit Savant Majagavi v. State of Karnataka reported in AIR 1997 p.3255.
(a) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction.
(b) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by trial court, if the said findings are against the weight of the evidence on record, or in Page 16 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined other words, perverse.
(c) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds not subscribing to the view expressed by the trial Court that the accused is entitled to acquittal.
(d) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial Court.
(e) If the High Court, on a fresh scrutiny and reappraised of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.
(f) The High Court has also to keep in mind that the trial Court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court, especially in the witness box.
(g) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.
24. In Anokh Singh v. State of Punjab , Supreme Court has held that in an appeal against acquittal, the High Court should attach greater weight to appreciation of evidence by the Trial Judge who had the occasion to watch the demeanour of the witnesses.
25. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible then also 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. (See Ramesh Babulal Doshi v. State of Gujarat ). In the instant case, the learned APP has not been able to point out to us as to how the findings recorded by the learned Additional Sessions Judge are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
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26. On overall appreciation of evidence, this Court is satisfied that there is no infirmity in the reasons assigned by the learned Additional Sessions Judge for acquitting the accused. Suffice it to say that the learned Additional Sessions Judge has given cogent and convincing reasons for acquitting the accused and the learned A.P.P. has failed to dislodge the reasons given by the learned Additional Sessions Judge and convince this Court to take a view contrary to the one taken by the learned Additional Sessions Judge."
5.2 In view of the above, learned advocate Mr.Kaswala has urged that the impugned judgment and order of acquittal passed by the trial court is in consonance with the settled principles of law vis-a-vis, the trial court has properly appreciated the evidence of the witnesses and has therefore, not committed any illegality or any irregularity and therefore, no interference is required to be called for in the present appeal and the present appeal be dismissed.
6. Heard learned advocates appearing for the respective parties and perused the material placed on record. Considering the issue involved in the present appeal and after examining the evidence in detail and after going through the record of the trial court, this Court is of the opinion that the trial court has not committed any illegality or any irregularity in passing the impugned judgment and order of acquittal. The evidence of PW-1 and 2 speak itself that the deceased was suffering from a Page 18 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined serious illness of tuberculosis and because of complications of the illness and aggravation the death of the deceased had occurred. The certificate issued by the doctor and the post mortem note also confirmed the said aspect, which are on record at Exh.-37 and Exh.-12 respectively. Event from the FSL report at Exh.-45, wherein, the specific conclusion arrived at by the scientific officer of the Forensic Science Laboratory, Ahmedabad from the sample sent for chemical examination that no poisonous substance was found and therefore, the allegations made by the informant was nullified and the trial court has rightly come to the conclusion that the prosecution has failed to establish that the deceased died because of committing suicide. In fact before lodging of the FIR, one accidental death was also informed by the brother namely, Aliyalsunil Vishrambhai Pandav PW-4 (Exh.-26) before Bhiloda police station and the same was also registered as accidental death and during the course of investigation, the prosecution has not found any material against the present respondent accused. Even there was no any independent witness's statement recorded by the I.O. though the deceased was working as a medical officer in Bhiloda Cottage Hospital and residing in the quarter attached to the hospital. Even other Page 19 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined office bearers were also residing in the quarter situated nearby the quarter of the decease, however, their statements were not recorded and no material was collected by the prosecution and after considering all the relevant material, the prosecution has miserably failed to establish the charge against the respondent accused. In fact, the evidence of the informant PW-
3 (Exh.-24), who has tried to make allegations against the present respondent, however, in his cross-examination, he has admitted that the deceased had married against the wish and will of the informant and family members and therefore, they were not keeping relation with the deceased since many years together. It was also further admitted by this witness in his cross-examination that he used to visit the house of the deceased in absence of the present respondent and he had not seen any kind of ill-treatment or any cruelty given to the deceased during his visit. It was also further admitted that his daughter was suffering from tuberculosis and was operated for the same cause and therefore, it appears that the informant and his family members had deposed against the respondent accused in vengeance and made all bald allegations against the respondent accused. PW-3 being the father of the deceased, PW-4 being the brother of the deceased, who had Page 20 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined recorded accidental death, PW-5 being the son of the deceased and PW-7 being a gynecologist doctor, whose statement was not recorded by the prosecution but, was directly examined by the prosecution before the trial court to prove the allegations of illicit relation of the present respondent with one Giraben, in fact the prosecution has also not examined the said Gitaben who was working as a maid nor any other evidence was collected by the prosecution. With a view to justify their allegations with regard to the accused having illicit relation with Gitaben having directly examined the said witness before the trial court without recording her statement and without supplying copy of the same to the respondent accused and therefore, under such circumstances, the trial court has not committed any error while passing the impugned judgment and order of acquittal.
6.1 The learned trial Judge has considered all the relevant material produced by the prosecution and after going through the evidence of the witnesses, the trial court was justified in passing the impugned judgment and order acquitting the present respondent accused. It is also now well settled that while exercising powers under Section 378 of Cr.P.C., if the Page 21 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined trial court while passing the order has committed any illegality or any perversity or has exceeded the jurisdiction, unless and until such facts come on record, the Court is very slow while dealing with an acquittal appeal. The Hon'ble Apex Court has in a series of judgments enunciated the principles while exercising jurisdiction under Section 378 against acquittal, the power of the Appellate Court is inasmuch as can re-appreciate the evidence, review or re-consider the evidence and if the Court finds that there is any illegality or any irregularity in the judgment then in that case only, the Court has power to entertain the appeal and interfere with the order of acquittal.
The scope and principles are enunciated by the Hon'ble Apex Court in case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415, more particularly paragraphs 42 and 43, which was subsequently re-affirmed by the Hon'ble Apex Court Rajesh Prasad Vs. State of Bihar and another, reported in [2022] 3 SCC 471, wherein, the Hon'ble Apex Court has enunciated the general principles in case of acquittal, more particularly in paragraph 26 the general principles are set out by the Hon'ble Apex Court based upon various decisions of the Hon'ble Apex Court. Hence, I am in complete agreement with the findings recorded by the trial Page 22 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined court.
6.2 It is also worthwhile to refer to the decision of the Hon'ble Supreme Court in the case of Babu Sahebagouda Rudragoudar Vs. State of Karnataka, reported in AIR 2024 SC 2252 = (2024) 8 SCC 149 wherein the Hon'ble Supreme Court has held and observed in paras - 37 to 40 as under:-
"37. This Court in the case of Rajesh Prasad v. State of Bihar and Another, (2022) 3 SCC 471 encapsulated the legal position covering the field after considering various earlier judgments and held as below: -
"29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [ Chandrappa v. State of Karnataka, (2007) 4 SCC 415 ] " 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, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Criminal Procedure Code, 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", Page 23 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
38. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka, (2023) 9 SCC 581 this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: -
"8.1.The acquittal of the accused further strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order Page 24 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."
39. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:-
(a) That the judgment of acquittal suffers from patent perversity;
(b) That the same is based on a misreading/omission to consider material evidence on record;
(c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
40. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court."
6.3 It would also be fruitful to refer to the decision of the Division Bench of this Court in case of State of Gujarat vs. Bharatkumar Jivabhai Gondalia, reported in [2024] LawSuit (Guj.) 980, Criminal Appeal No.767 of 1997, wherein, it has been observed and held as under :
"12. At the outset, let refer to Sections 498-A, 107 and 306 of the IPC charge of which are levelled against the accused.
"498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be Page 25 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined liable to fine.
107. Abetment of a thing.-- A person abets the doing of a thing, who -- (First)-- Instigates any person to do that thing; or (Secondly)-- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (Thirdly)--
Intentionally aids, by any act or illegal omission, the doing of that thing.
306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
13. A plain reading of Section 498-A of the IPC would indicate that in order to prove that the husband or relative of the husband of woman subjecting her to cruelty, the willful conduct of the accused viz., husband or relative of the husband has to be proved of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to her life, limb or health. The harassment to the wife must be of such a nature that it was meted with a view to coercing her or any person related to her to meet any indecisive demand for any property or valuable security.
14. In Indrasingh M. Raol v/s. State of Gujarat - 1999(3) GLR 2536, this Court has defined and explained the expression - cruelty and harassment in context to Sec.498A & 306 of the IPC. Relevant paragraph is para-6 & 7 which read as under :
"6. The expression "cruelty" means and implies harsh & harmful conduct of certain intensity and persistence. It, therefore, covers the acts causing both physical and mental agony and torture, or tyranny and harm as well as unending accusations and recrimination reflecting bitterness putting the victim thereof to intense miseries & woes strongly stirring up her feeling that life is now not worth living and she should die, being the only option left. The provision of Sec. 498A therefore, envisages intention to drag or force the woman to commit suicide by unabetted, persistent & grave cruelty. In one case, therefore, the facts on record may constitute the cruelty showing required intention and in another case, it may not. The concept of cruelty, therefore, is found different or diversifying from place to place, individual to individual, and also according to social and economical status of the person and several other factors. The Court has, therefore, to becoming more heedful, chary & wary, exert and ascertain the cruelty & required intention on the basis of materials on record and also on the basis of the culture, ordinary Page 26 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined sentimentality or sensitivity, capacity to tolerate, temperament, tendency, interse honour, matrimonial relationships, state of health, dissension, interaction, or conflicting ideology, will to dominate, utter disregard of one's own obligation or intractability or habits as well as customs & traditions governing the parties and other governing forces, provided necessary acceptable evidence in this regard is available on record.
7. The word "harassment" is not defined in Sec. 498A. The meaning of the word "harass" which can be found from the dictionary is to subject some one to unbearable, continuous or repeated or persistent unprovoked vexatious attacks, questions, demands, or persecutions, or brutality, or tyranny, or harm, or pain, or affliction, or other unpleasantness, or grave annoyance, or troubles. In short what can be said is that Sec. 498A will not come into play in every case of harassment and/or cruelty. Reasonable nexus between cruelty and suicide must be established. It should, therefore, be shown that the incessant harassment or cruelty was with a view to force the wife to end her life or fulfil illegal demands of her husband or in-laws, and was not matrimonial cruelty, namely usual wear and tear of matrimonial life. It should hardly be stated that the prosecution has to establish the charge beyond reasonable doubt. No doubt arithmetical accuracy is not expected from the prosecution, but it has to adduce such evidence which would be credible leaving no room to any reasonable doubt; and pointing to the guilt of the accused."
16. When offence of 498(A) is added with offence of section 306 of IPC, prosecution is obliged to prove that cruelty was meted out to the deceased being result of willful conduct of accused and same has driven deceased to commit suicide. Prosecution is also burdened to prove proximity and/or nexus between cruelty and act of suicide.
17. The stray domestic quarrels, perfunctory abuses by husband or in laws are common in Indian society. Crude and uncultered behaviour by the husband towards his wife being mundane would not form and constitute abetement unless these acts or conduct signally or cumulatively are found to be of such formidable and compelling nature as may lead to commission of suicide. Abetment is mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, accused cannot be convicted under section 306 of IPC.
18. In background of the above legal position, if we examine the evidence on record, the prosecution has examined the complainant-father of the Page 27 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined deceased as PW 2-Madhavdas Gangaram (Exh.15). He has produced the FIR at Exh.16. He does not speak of any specific incident of the harassment and cruelty which attracts the offence of Section 498-A read with Section 306 of the IPC. No specific act or omission of the act has been deposed by this witness which instigated the deceased to commit suicide or would render the deceased with no alternative but to commit suicide.
26. At this juncture, I may refer to some recent pronouncement of the Hon'ble Supreme Court in regards to the offence under Section 306 of the IPC. In Kashibai & Ors. vs. the State of Karnataka [2023 LiveLaw (SC) 149] the Hon'ble Apex Court after referring to well celebrated earlier judgments in case of M. Mohan Vs. State Represented by the Deputy Superintendent of Police [2011 3 SCC 626]; State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73] and Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) ((2009) 16 S (2010) 3 SCC (Cri) 367] has held in paragraph 14 and 15 as under:
"14. Though it is true that as per Section 113A of the Evidence Act, when the question arises as to whether commission of suicide by a woman had been abetted by her husband or any relative of her husband, and when it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court can presume, having regard to the other circumstances, that such suicide has been abetted by her husband or such relative of her husband. However, mere fact of commission of suicide by itself would not be sufficient for the court to raise the presumption under Section 113A of the Evidence Act, and to hold the accused guilty of Section 306 IPC.
15. In Mangat Ram Vs. State of Haryana, this Court considering the provisions of Section 498A and 306 of IPC in the light of the presumption under Section 113A of the Evidence Act, observed as under-
"30. We are of the view that the mere fact that if a married woman commits suicide within a period of seven years of her marriage, the presumption under Section 113-A of the Evidence Act would not automatically apply. The legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband has subjected her to cruelty, the presumption as defined under Section 498- A IPC, may attract, having regard to all other circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband. The term "the Court may presume, having regard to all the other circumstances of the case, that such suicide Page 28 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined had been abetted by her husband" would indicate that the presumption is discretionary. So far as the present case is concerned, we have already indicated that the prosecution has not succeeded in showing that there was a dowry demand, nor would the reasoning adopted by the courts below would be sufficient enough to draw a presumption so as to fall under Section 113-A of the Evidence Act."
27. To attract the ingredients of Section 306 of the IPC, the Hon'ble Apex Court in case of Yaddanapudi Madhusudhana Rao The State Of Andhra Pradesh & Ors [2023 LiveLaw (SC) 441] framed the importance of the abetment as defined in Section 107 of the IPC. Paragraph 9 thereof reads as under:
"9. To attract the ingredients of Section 306 IPC, there must be evidence to substantiate the existence of suicide It should be followed by abetment, as required under Section 107 of the IPC. In as much as we do not find any merit in evidence to support the case of the prosecution that there was a suicide, thereby the statement recorded from LW25 itself shows that the deceased was alling and therefore, not keeping in good health."
28. With profit I may also refer to judgment in case of Kumar @ Shiva Kumar Versus State Of Karnataka [2024 (0) AIJEL-SC 73335] where Hon'ble Apex Court having referred to Section 306 and 107 of the IPC and surveying the earlier pronouncement in paragraph 47 has held as under.
"47. Human mind is an enigma. It is well neigh impossible to unravel the mystery of the human mind. There can be myriad reasons for a man or a woman to commit or attempt to commit suicide: it may be a case of failure to achieve academic excellence, oppressive environment in college or hostel, particularly for students belonging to the marginalized sections, joblessness, financial difficulties, disappointment in love or marriage, acute or chronic ailments, depression, so on and so forth. Therefore, it may not always be the case that someone has to abet commission of suicide. Circumstances surrounding the deceased in which he finds himself are relevant."
29. The submission of learned APP that the learned sessions court has not properly applied the presumption under Section 113-A of the Evidence Act has been appropriately dealt with by the Hon'ble Apex Court in the above referred case and believed that before such presumption under Section 113-A of the Evidence Act is applied that mere act to commit suicide would not be sufficient for the Court to raise the presumption under Section 113-A Page 29 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined of the Evidence Act and to held the accused guilty of Section 306 of the IPC.
30. At this juncture I may also refer to judgment in case of State Of Gujarat Versus Mosin Husenbhai Bhoda & Ors.[2024 GLR (1) 693] wherein this Court after referring to various pronouncement of the Hon'ble Apex Court has held that to invoke presumption under Section 113-A of the Act, the prosecution has to prove that deceased was subjected to cruelty as defined in Section 498-A of the IPC. Thus, learned APP failed to demonstrate any illegality or perversity in the impugned judgment and order. We find no infirmity in the judgment and order of acquittal acquitting the accused.
31. It cannot go unnoticed that that in view of principles of criminal jurisprudence, presumption of innocence runs in favour of the accused unless proven guilty. This presumption continues to operate at all stages of the trial. The presumption of innocence gets established when the charge alleged against him ends in acquittal. The presumption doubles once the accused is proved innocent. A person / prosecution, who intends to prosecute the accused for charge, in which he has been acquitted after appreciation of evidence on record gets on higher footings and his expected to be rebut the same in appeal.
32. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The " two- views theory" has been judicially recognised 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.
33. At this juncture, we may refer the judgment of Muralidhar v. State of Karnataka, (2014) 5 SCC 730, wherein the Hon'ble Apex Court dealing with the appeal against acquittal, has held as under :-
(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;Page 30 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024
NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined
(iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and
(iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.
34. In Chandrappa v. State of Karnataka, (2007) 4 SCC 415, 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, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.Page 31 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024
NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined 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.
35. Recently, while reiterating the earlier view, in case of Mallappa v. State of Karnataka, (2024) 3 SCC 544, the Hon'ble Apex Court observed as under:-
"25. 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.
26. It may be noted that the possibility of two views in a criminal case 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.
42. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards Page 32 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined 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 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."
36. In view of above and considering the facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal."
6.4 It is also worthwhile to refer to the recent decision of the Hon'ble Supreme Court in the case of Ramesh vs. State of Karnataka, reported in [2024] 9 SCC 169, wherein the Hon'ble Supreme Court has held and observed in paras-20 and 21 as under:-
Page 33 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined "Head Note B. - Criminal Procedure Code, 1973 - S.378 - Appeal against acquittal - General principles regarding the power and duty of the appellate court, reiterated - Nagrik Suraksha Sanhita, 2023, S.419
20. At this stage, it would be relevant to refer to the general principles culled out by this Court in Chandrappa and others vs. State of Karnataka , regarding the power of the appellate Court while dealing with an appeal against a judgment of acquittal. The principles read thus:
"42. .... (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence 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.
21. In Rajendra Prasad v. State of Bihar, a three-Judge Bench of this Court pointed out that it would be essential for the High Court, in an Page 34 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined appeal against acquittal, to clearly indicate firm and weighty grounds from the record for discarding the reasons of the Trial Court in order to be able to reach a contrary conclusion of guilt of the accused. It was further observed that, in an appeal against acquittal, it would not be legally sufficient for the High Court to take a contrary view about the credibility of witnesses and it is absolutely imperative that the High Court convincingly finds it well- nigh impossible for the Trial Court to reject their testimony. This was identified as the quintessence of the jurisprudential aspect of criminal justice. Viewed in this light, the brusque approach of the High Court in dealing with the appeal, resulting in the conviction of Appellant Nos. 1 and 2, reversing the cogent and well-considered judgment of acquittal by the Trial Court giving them the benefit of doubt, cannot be sustained."
6.6 So far as the offence under Section 306 of IPC is concerned, it would be fruitful to refer to the recent decision of the Hon'ble Apex Court rendered in case of Nipun Aneja and Others Vs. State of Uttar Pradesh in Criminal Appeal No.654 of 2017 decided on 03/10/2024, wherein, the Hon'ble Apex Court has discussed the basic ingredients to constitute an offence under Section 306 of the IPC from paragraph 13 onwards.
7. Considering the above referred decisions and considering the facts of the present case, the present appeal fails and is hereby dismissed. The judgment and order of acquittal dated 01/05/2009 passed by the learned Additional Sessions Judge, Fast Track Court No.4, Himmatnagar camp at Idar in Sessions Case No.125 of 2008 is hereby confirmed. Bail bonds, if any, Page 35 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024 NEUTRAL CITATION R/CR.A/1638/2009 JUDGMENT DATED: 02/12/2024 undefined furnished by the respondent accused stands cancelled.
Record and Proceedings, if any, be sent back to the concerned Trial Court forthwith.
(HEMANT M. PRACHCHHAK,J) Dolly Page 36 of 36 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Thu Dec 12 2024 Downloaded on : Fri Dec 20 22:09:58 IST 2024