Gujarat High Court
State Of Gujarat vs Lakhamanbhai Premajibhai on 28 November, 2024
NEUTRAL CITATION
R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 274 of 2008
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
LAKHAMANBHAI PREMAJIBHAI & ORS.
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Appearance:
MS JYOTI BHATT, ADDL. PUBLIC PROSECUTOR for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No.
1,2,3,4
MR P B KHANDHERIA(5228) for the Opponent(s)/Respondent(s) No. 2,3,4
UNSERVED EXPIRED (R) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 28/11/2024
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 28/03/2007 passed by the learned Additional Sessions Judge & Presiding Officer, Fast Track Court No.11, Gondal camp at Dhoraji (hereinafter Page 1 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined referred to as "the trial court") in Sessions Case No.182 of 1993, whereby, the learned Trial Judge has acquitted the original accused respondents herein for the offence punishable under Sections 498A, 306 and 114 of the Indian Penal Code (for short "the IPC").
1.1 At the outset, it may be noted that the respondent No.1 - Lakhamanbhai Premajibhai, passed away on 09/05/2009 and respondent No.4 - Divaliben Lakhamanbhai passed away on 14/02/2020 pending the present appeal, and therefore, the present appeal stands abated qua respondent No.1 - Lakhamanbhai Premajibhai and No.4 - Divaliben Lakhamanbhai. The death certificates to that effect issued by the competent authority are placed on record.
2. The brief facts giving rise to the present appeal are as under :
2.1 An offence being C.R. No.100 of 1992 came to be registered with Patanvav Police Station for the offence under Sections 498(A), 306 and 114 of the Indian Penal Code by the complainant viz., Labhuben wife of Ravjibhai resident of Motimarad, Taluka: Dhoraji.Page 2 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024
NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined 2.2 It is stated in the complaint that the respondent-accused no.2 viz., Bipinbhai is the husband of the deceased, the respondent-accused no.1 viz., Lakhamanbhai and no.4 viz., Divaliben are the father-in-law and mother-in-law respectively and respondent-accused no.3 viz., Chandrakantbhai is brother- in-law (Diyar) of the deceased. All the accused persons used to taunt the deceased on account of household work and also ill treatment, harassment and torture on account of inadequacy of dowry and, hence, physical and mental torture meted out by the accused persons. On 04/10/1992, at about 7 o'clock in the morning, the deceased poured kerosene over her body and ignited herself and committed suicide. Accordingly, complaint came to be registered.
2.3 Upon such complaint, investigation was commenced and on conclusion of the investigation, on the basis of the material collected against the respondents-accused, since the Investigating Officer found a prima-facie case against the respondents-accused, charge-sheet came to be filed before the learned Judicial Magistrate, First Class, Dhoraji for the offence under Sections 498(A), 306 and 114 of the Indian Penal Code, Page 3 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined which came to be numbered as Criminal Case No.100 of 1992. 2.4 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.182 of 1993.
2.5 The learned Additional Sessions Judge & Presiding Officer, Fast Track Court No.11, Gondal camp at Dhoraji perused the evidence in support of the prosecution and framed the charge vide Exh.-1 for the offence under Sections 498(A), 306 and 114 of the Indian Penal Code. Plea of each respondents-accused were recorded, wherein they pleaded not guilty and claimed to be tried.
2.6 The trial thereafter, commenced with the prosecution side laying down evidence both oral as well as documentary, whereby Prosecution Witness no.1 viz., Labhuben wife of Ravjibhai (Complainant) at Exh.-69, Prosecution Witness No.2 viz., Gokalbhai Juthabhai (relative of the deceased) at Exh.-85, Prosecution Witness No.3 viz., Ravjibhai Valjibhai (father of the Page 4 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined deceased) at Exh.-86, Prosecution Witness No.4 viz., Dr.Ravjibhai Nagjibhai Kodhiya at Exh.-89, Prosecution Witness No.5 viz., Yogeshbhai at Exh.-95, Prosecution Witness No.6 viz., Minaben wife of Ashwinkumar Ratanpara (sister of the deceased) at Exh.-97, Prosecution Witness No.7 viz., Morardan Jilubhai Gadhavi (P.S.O.) at Exh.-98 and Prosecution Witness No.8 viz., Maheshkumar Dilipsinh Jadeja (P.S.I.) at Exh.-102 were examined during the course of trial.
2.7 The prosecution has also placed reliance upon various documentary evidence viz., yadi for postmortem at Exh.-90, maranottar report at Exh.-91, inquest panchnama at Exh.-92, P.M. Report at Exh.93, scene of offence panchnama at Exh.- 103, report for addition of Section 306 of the Indian Penal Code at Exh.-105, report sent by the Motimaran Police Station at Exh.-106, copy of station diary at Exh.-107, deputy order at Exh.-109 and report for registering offence at Exh.-109. 2.8 After closing the evidence and hearing the respondents- accused under Section 313 of Cr.P.C., the learned Additional Sessions Judge & Presiding Officer, Fast Track Court No.11, Gondal camp at Dhoraji acquitted all the respondents-accused Page 5 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined for the offence under Sections 498(A), 306 and 114 of the Indian Penal Code holding inter alia that the prosecution had failed to prove the circumstances relied upon for the purpose of establishing the guilt of the accused by any reliable or satisfactory evidence.
2.9 Being aggrieved and dissatisfied with the Judgment and Order of acquittal passed by the learned Additional Sessions Judge & Presiding Officer, Fast Track Court No.11, Gondal camp at Dhoraji in Sessions Case No.182 of 1993, 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 and learned advocate Mr.P.B. Khandheria, appearing on behalf of the respondents - original accused.
4. On the basis of the oral as well as documentary evidence and the material placed before the trial court, learned APP Ms.Jyoti Bhatt has tried to canvas and contend before this Court that, the trial court has committed a serious error of law Page 6 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined and on facts while passing the impugned judgment and order of acquittal and completely over-looked the evidence produced by the prosecution while recording reasons and has not properly appreciated the evidence of the witnesses in its true and proper spirit and thus, the impugned judgment and order of acquittal passed by the trial court is erroneous, illegal and unjust and the same is required to be quashed and set aside. She has submitted that the trial court while recording the reasons has not properly described the evidence of the witnesses and has committed a serious error while appreciating the evidence of those witnesses who had supported the case of the prosecution. She has submitted that the deceased died within a short span of marriage life of five months and therefore, the trial court ought to have drawn the inference under Section 113A of the Indian Evidence Act, however, the trial court has failed to refer the provisions of law and failed to discuss the said facts while recording the reasons and therefore, under such circumstances, the evidence led by the prosecution was completely over-looked and ignored by the trial court and thus, the findings recorded by the trial court while acquitting the respondent accused is completely erroneous, illegal and unjust. She has further submitted that Page 7 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined though there was specific evidence of the witness with regard to demand of dowry, on account of which, there was ill treatment and cruelty meted out to the deceased, however, the trial court has not appreciated the evidence of that witness in its true and proper spirit while passing the impugned judgment and order of acquittal. She has submitted that in fact, the trial court has ignored the evidence of the witnesses on the ground that there are serious and material contradictions proved from the evidence of the witnesses viz. mother and sister of the deceased and therefore, under such circumstances, it is highly unsafe to record the conviction by relying upon such evidence and therefore, the trial court has disbelieved the depositions of the mother being informant and sister of the deceased who had deposed before the trial court. Over and above the grounds agitated in the memo of appeal, learned APP Ms.Bhatt has submitted that the judgment of acquittal based on the reasons stated in the impugned judgment is absolutely erroneous, illegal and unjust and therefore, she has urged that the present appeal be allowed and the impugned judgment and order of acquittal passed by the trial court be quashed and set aside.
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5. As against that, learned advocate Mr.P.B. Khandheria, appearing on behalf of the respondents accused has submitted that the trial court has rightly passed the impugned judgment and order of acquittal in favour of the respondents accused as the prosecution has failed to prove its case beyond reasonable doubts. He has submitted that the evidence of all the witnesses are full of contradiction and omissions, since the complainant Labhuben Ravjibhai (PW-1, Exh.69) in her deposition has stated that deceased committed suicide by strangulating herself within five months after her marriage. He has submitted that, PW-1 in paragraph No.4 of her evidence, has stated that the accused Nos.2, 3 and 4 i.e. respondent Nos.2, 3 and 4 killed the deceased and then again she has stated that she could see burn marks on the body of the deceased. She has admitted in her cross- examination that marriage of deceased was done in community marriage where gifts and ornaments were provided by the organizers and said gifts and ornaments were accepted with mutual consent and hence, it is quite clear that there was no issue with regard to demand of dowry. He has submitted that the Uncle of the deceased namely Gokalbhai Juthabhai (PW-2, Exh.85) has stated in his evidence that after marriage, when he met the Page 9 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined deceased, at that time, the deceased told him that she was being harassed by her husband, father-in-law, mother-in-law and brother-in-law but, in his cross-examination he has admitted that he had not stated the said facts in his statement before the police. He has submitted that the father of the deceased namely Ravjibhai Valjibhai (PW-3, Exh.86) has deposed that when deceased came to village Supedi, she told him that if money is not given to her in-laws then her in-laws would kill her. He has further stated that on receiving the news of incident, family members of the witness had gone to pick the deceased but, upon returned they thought that she would be fine. The said witness has admitted the version given by him in his police statement. He has submitted that the sister of the deceased namely Meenaben Ashwinkumar Ratanpara (PW-6, Exh.97) has admitted in her cross- examination that she had not stated the facts of deceased setting herself ablaze in her statement before the police but, while recording her evidence before the court she had stated that deceased died of burn injuries. She has also admitted that deceased never told her that her in-laws are demanding dowry for purchasing a car.
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NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined 5.1 Learned advocate Mr.Khandheria has further submitted that the prosecution has examined Maheshkumar Dilipsinh Jadeja (PW-8, Exh. 102) and in his cross-examination, the said witness has admitted that the complainant in her complaint (Exh. 70) has not stated that the accused No.2 on the day of death of deceased had come to village Supedi to call mother of the deceased and stated that he and deceased had a quarrel. He has further submitted that the said witness has admitted in his cross- examination that the father of the deceased Ravjibhai (PW-3) has not stated in his police statement recorded on 04/10/1992 that in-laws of his daughter were causing mental and physical torture to his daughter. He has further submitted that it is admitted that the sister of deceased Meenaben (PW-6) had not stated in her statement before the police that the deceased died by pouring kerosene on herself and he has also admitted that Meenaben i.e, sister of deceased had stated in her police statement that accused No.2 had come to Supedi and told her father to bring deceased back to her maternal home and therefore, her mother had gone to Moti Marad and came back on that day. The said witness has also admitted that at the time of recording panchnama of scene of offence, no muddamal was seized and no articles were seized Page 11 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined while recording the inquest panchnama and he had also recorded statements of independent witnesses but, as they were not supporting the prosecution case, said independent witnesses were not included in the charge-sheet. Learned advocate Mr.Khandheria has therefore, submitted that the trial court has not committed any error while acquitting the respondents accused in the present case. It is submitted that all the witnesses upon which the prosecution has sought to build its case have given absolutely contradictory depositions and each and every witness has narrated a new story before the trial court. He has submitted that even otherwise, all the witnesses on the evidence of whom prosecution has sought to build its case are related witnesses and there is not a single independent witness brought on record for appreciation of the present case and even none of the witnesses have seen the incident and when the case is of circumstantial evidence and chain of circumstances is not fulfilled then the benefit of doubt should go to the accused.
5.2 Learned advocate Mr.Khandheria has further submitted that the Investigating Officer has admittedly not sent muddamal to FSL and even if, the case of the prosecution that Page 12 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined deceased committed suicide is assumed to be true without admitting, then also, the IO has not collected muddamal. In other words, the barrel of kerosene which was lying outside the bathroom, where the deceased allegedly poured kerosene on herself was not sent for FSL and it raises suspicion on the prosecution case in view of the fact that prosecution has failed to establish as to exactly where the deceased set herself ablaze. He has submitted that if the deceased poured kerosene on herself outside the bathroom then there ought to have been traces of kerosene outside the bathroom and if she poured kerosene in the bathroom then what was the reason for her to again come out of bathroom to just keep the barrel of kerosene outside the bathroom and therefore, all these questions have remained unanswered by the prosecution and therefore also, the acquittal recorded by the trial court is just and proper and requires no interference. He has submitted that the real story of the case is suppressed by the IO by not including the police statements of independent witnesses. He has submitted that the IO, as per his admission in his evidence, has not included the statements of independent witnesses as they were not supporting the prosecution case. It was the duty of the IO to bring such statements on the record of the case so Page 13 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined as to enable the learned Judge to consider whether the said statements were reliable or not, which has not been done intentionally just with a view to falsely implicate the respondents accused in the alleged offence and therefore also, the judgment recording acquittal is just and proper and requires no interference.
5.3 Learned advocate Mr.Khandheria has further submitted that the evidence of none of the witnesses established the case of demand of dowry as alleged by the prosecution. He has submitted that it is apparent from the evidence of all the witnesses that if, the allegation of demand of dowry is accepted to be true without admitting the same then also, the version of the complainant and interested witnesses, deceased had already given the gold ornaments to her in-laws and therefore, the allegation of instigating the deceased for alleged demand of dowry to commit suicide is not believable. It was also submitted that there is no any charge of dowry. It was submitted that there is nothing on record to substantiate as to how the deceased died and prosecution has just got up a story that she died of burn injuries. It was further submitted that all the witnesses have exaggerated the version before the learned Page 14 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined Judge which fact is proved by the deposition of the concerned IO. It was further submitted that there is material contradiction in the evidence of IO and whatever stated by the said witnesses before the Court was stated for the first time and that too has been contradicted by the evidence of IO. The said facts were not stated at the time of recording of the FIR or even in the statements of witnesses recorded under Section 161 of the Cr.P.C. before the police.
5.4 Learned advocate Mr.Khandheria has further submitted that it is cardinal principle of criminal jurisprudence that the prosecution must and not 'may' prove the case beyond all reasonable doubts. Herein, the case of prosecution is that the deceased locked the washroom from inside and committed suicide but, there is no evidence as to how and who has broken and open the door of washroom and how the deceased came out of the washroom. He has submitted that if the case of prosecution that deceased poured kerosene outside the washroom and then went inside the washroom is believed as it is, then some traces of kerosene might have been found by the prosecuting agency during investigation outside the washroom but nothing of such sort has been mentioned in the Page 15 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined panchnama of scene of offence. He has submitted that even the articles seized from the scene of offence have not been sent to FSL for analysis and the case of prosecution is that even electric heater, bucket, hanger are found in completely rusty condition but no investigation is done to find out whether all these articles have burnt due to electrocution or due to fire, whether there was any carbon particle on these articles or not is also not ascertained by the prosecution by sending the said articles to FSL. He has further submitted that even the injuries in the PM report are not corresponding to the case of prosecution and therefore, all these facts raise serious doubt as regards the veracity of the prosecution case and therefore, the learned Judge has rightly acquitted the respondents accused which call for no interference by this Court. It was submitted that though the appellate Court has power to review, re-appreciate and reconsider evidence upon which order of acquittal is found however, while doing so, it has to bear in mind that in case of acquittal there is double presumption of innocence in favor of accused in view of the fact that accused has secured acquittal and therefore, presumption of innocence, which is available to all accused under the criminal jurisprudence as every person is presumed Page 16 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined to be innocent unless proved to be guilty, gets further reinforced and strengthened and the appellate Court should not interfere with the order of acquittal unless there is gross perversity in appreciation of evidence and even if two views are possible, it should follow the view taken by the trial court rather than choosing second possible version. He has also referred to the authorities cited before the trial court which are as under :
[1] 1996 (2) GLR page-234 State of Gujarat v/s. Amra Arjan Dhamol;
[2] 1997 (3) GLR page-2153 = 1996 (1) GLH page-1018 Ashish Bhupendra Gandhi v/s. State of Gujarat;
[3] I [2002] CCR page-138 (S.C.) Gananath Pattnaik v/s. State of Orissa;
[4] 2006 (1) GLR page-514 State of Gujarat v/s. B.B. Lad;
[5] 2006 (1) Acquittal page-29 Sangannagri Narsimulu v/s.
State of A.P.;
[6] 1998 Cri. L.J. page-993 Thangappandian v/s. State by Deputy Superintendent of Police;
[7] 1996 (1) GLR page-797 State of Gujarat v/s. Sunil Kanayalal Jani;
[8] 1993 (3) GLR page-2536 Indrasingh Raol v/s. State of Page 17 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined Gujarat;
[9] AIR 1995 SC page-135 Jaggasingh v/s. State of Punjab;
[10] 1988 (1) GLH (U.J.) 22 page-30 State of Gujarat v/s.
Harsing Mansukh Bhil.
5.5 In support of his submissions, learned advocate Mr.Khandheria has referred and relied upon the ratio laid down by the Hon'ble Supreme Court of India in the case of (1) Fedrick Cutinha vs. State of Karnataka reported in 2023 (0) AIJEL SC 70816; (2) Mallappa vs. State of Karnataka reported in 2024 (0) AIJEL SC 73129 and (3) Mohan alias Srinivas vs. State of Karnataka reported in AIR Online 2021 SC 1184. He has further submitted that even if the case of prosecution that deceased committed suicide due to mental pressure meted out to her for demand of dowry and therefore she committed suicide is concerned, it is submitted that there is no charge of dowry and mere demand of money from wife or her parents would not constitute cruelty or harassment and in absence of any evidence of cruelty or harassment, accused cannot be held guilty for offence under section 306 of IPC by raising presumption under Section 113A of the Evidence Act. In this regard, it is apposite to rely upon the decision of Hon'ble Page 18 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined Supreme Court in the case Naresh Kumar vs. State of Haryana reported in 2024 (0) AIJEL SC 73286. In the case on hand, as submitted above, evidence of none of the witnesses disclosed any form of incessant cruelty or harassment on the part of husband which would in ordinary circumstances drag the wife to commit suicide. He has further submitted that in order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit the offence and mere harassment is not sufficient to hold an accused guilty of abetting commission of suicide and mere fact that deceased committed suicide within a period of seven years of her marriage, presumption under Section 113A would not automatically apply and therefore, the learned Judge has rightly recorded acquittal in favor of the present respondents accused, which do not call for any interference by this Court. It was further submitted that this Court in the case of Rameshchandra C. Soni and Others vs. State of Gujarat reported in 2001(0) AIJEL HC 210265 has held that, it is but natural that since dear one of witnesses has met with an unnatural death, they would hold the accused responsible for the death and a feeling of revenge would prompt them to give exaggerated version and to make even false allegations Page 19 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined against the accused to see that they are penalised by the Court. At the cost of repetition, it was submitted by learned advocate Mr.Khandheria that respondent Nos.1 and 4 have expired and the respondent Nos.2 and 3 are now aged more than 60 years and suffering from various age related ailments and therefore also, even on the humanitarian ground, impugned judgment may not be interfered with and therefore, urged that the present appeal be rejected and the impugned judgment and order of acquittal passed by the trial court be confirmed.
6. I have heard the learned advocates appearing for the respective parties and perused the material placed on record.
On perusal of the evidence recorded by the trial court and on examining the evidence, the issue involved in the present appeal is as to whether the offence under Section 306 read with Section 498A and 114 of IPC was proved against the respondents accused, whether the trial court was justified in passing the impugned judgment and order of acquittal in favour of the respondents accused, whether the prosecution was able to establish the charge under Section 498A, 306 and 114 of IPC against the respondents accused, whether there is Page 20 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined any illegality or any infirmity in the impugned judgment and order of acquittal recorded by the trial court. I answer accordingly.
6.1 I have thoroughly examined the records of the trial court and I have also gone through the depositions of the witnesses and also considered the oral as well as documentary evidence recorded by the trial court. It is an undisputed fact that the marriage span of the deceased Vanitaben and the respondent No.2 was only of five months and she was only aged 22 years when she had committed suicide. But, unfortunately, herein the present case, no proper investigation was carried out by the Investigating Agency and the witnesses have also not supported the case of the prosecution to the extent to arraign the respondents accused for the alleged offence under Sections 498A, 306 and 114 of IPC. As submitted by learned advocate Mr.Khandheria that all the witnesses upon whom the prosecution has sought to rely upon its case, have given absolutely contradictory depositions and each and every witness has narrated a new story before the trial court and there is not a single independent witness brought on record for appreciation of the present case and even none of the Page 21 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined witnesses have seen the incident and the chain of circumstances is not fulfilled. Therefore, after considering all these aspects, the trial court was justified in passing the impugned judgment and order while considering the provisions of Section 498A, 306 and 114 of the IPC and 113A of the Indian Evidence Act, which are reproduced hereunder :
Section 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 liable to fine.
Explanation.-- For the purpose of this section, "cruelty" means--
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or 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.
Section 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 Section 114- Abettor present when offence is committed.-- Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence. Page 22 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024
NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined Section 113-A. Presumption as to abetment of suicide by a married woman. [Inserted by Act 46 of 1983, Section 7.]- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and 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 may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation. - For the purposes of this section, "cruelty" shall have the same meaning as in section 498-A of the Indian Penal Code (45 of 1860).] 6.2 On considering the submissions and on perusal of the witnesses, the Court is prima facie of the opinion that it depends upon the psychological condition of the concerned person committing suicide and therefore, in the immediate past, there was no reason for the deceased to opt for such a harsh step of committing suicide and therefore, under such circumstances, the trial court has not committed any error of law and facts while passing the impugned judgment and order of acquittal. In view of the settled principles of law that when two views are possible and if the trial court has adopted the view which is in favour of the accused under normal circumstances, it may not be disturbed by the appellate court while exercising jurisdiction under Section 378 of Cr.P.C. The Page 23 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined 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 court.
6.3 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 Page 24 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined 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", "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 Page 25 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined 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 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 Page 26 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined rendered by the trial Court."
6.4 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 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 Page 27 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined 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 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 Page 28 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined 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 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 Page 29 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined 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 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 Page 30 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined 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 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 Page 31 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined 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;
(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 Page 32 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined 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.
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 Page 33 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined 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 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;Page 34 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024
NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined
(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."
6.5 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:-
"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. Page 35 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined 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 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. Page 36 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024 NEUTRAL CITATION R/CR.A/274/2008 JUDGMENT DATED: 28/11/2024 undefined 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 28/03/2007 passed by the learned Additional Sessions Judge & Presiding Officer, Fast Track Court No.11, Gondal camp at Dhoraji in Sessions Case No.182 of 1993 is hereby confirmed. Bail bonds, if any, furnished by the respondents accused stand cancelled.
Record and Proceedings, if any, be sent back to the concerned Trial Court forthwith.
(HEMANT M. PRACHCHHAK,J) Dolly Page 37 of 37 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Dec 06 2024 Downloaded on : Fri Dec 06 22:51:18 IST 2024