Gujarat High Court
State Of Gujarat vs Madhu Pata on 19 January, 2023
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
NEUTRAL CITATION
R/CR.A/993/1996 JUDGMENT DATED: 19/01/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 993 of 1996
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI Sd/-
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
MADHU PATA
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Appearance:
MR CHINTAN DAVE, PUBLIC PROSECUTOR for the Appellant(s) No. 1
MR SAURIN A SHAH(791) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 19/01/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
1. This is an appeal by the appellant-State, challenging the judgment and order, Dated:
23.08.1996, passed by the learned Additional Session Judge, Bhavnagar ('trial Court', in brief), in Page 1 of 22 Downloaded on : Sun Sep 17 20:58:16 IST 2023 NEUTRAL CITATION R/CR.A/993/1996 JUDGMENT DATED: 19/01/2023 undefined Sessions Case No. 20 of 1996, whereby, the trial Court acquitted the opponent-original accused of the offence punishable under Section 302 of the Indian Penal Code, 1860 ('IPC', hereinafter) and Section 135 of the Bombay Police Act, 1951.
2. The brief facts of the case of the prosecution, as was presented before the trial Court, are as under;
On 03.11.1995, the original complainant, namely Bababhai Thobhanbhai Aayar, who happens to be the real brother of the deceased-Bhikhabhai, gave a complaint before the Police Sub Inspector, Datha, wherein, he stated that they are two brothers and out of them, the complainant is the youngest and they are residing in a joint family.
2.1 It is, further, stated in the complaint that they jointly own agricultural land, admeasuring about 75 bigha. At the relevant point of time, out of 75 bigha of the land, they had grown Jowar (Sorghum) in about 25 bigha of land. For the purpose of harvesting the crop of Jowar, they had been calling daily-wage labourers from village Zanjmer. However, since, the crop of Jowar (Sorghum) was more and there was a need for some more daily-wage labourers, on 02.11.1995, the deceased-Bhikhabhai went to village Zanjmer in the evening at about 07:00 p.m. for the purpose of hiring the daily-wage labourers. However, since, the Page 2 of 22 Downloaded on : Sun Sep 17 20:58:16 IST 2023 NEUTRAL CITATION R/CR.A/993/1996 JUDGMENT DATED: 19/01/2023 undefined deceased-Bhikhabhai did not return home during night, the complainant got-up early in the morning on 03.11.1995 and went to village Zanjmer in search of his elder brother.
2.2 It is, further, stated in the complaint that when the complainant reached on the outskirts of village Zanjmer, in the morning at about 08:00 a.m., he came to know that his elder brother-Bhikhabhai was murdered. Hence, he informed the Sarpanch of the village Zanjmer about the incident and went to the police station to lodge the complaint.
2.3 It is also stated in the police complaint that the original accused-the opponent, herein, was accompanying the deceased-Bhikhabhai, when he left his house for going to village Zanjmer on 02.11.1995. The complainant, however, stated in the complaint that he does not know, as to who had killed his elder brother.
2.4 Pursuant to the registration of the FIR, the investigating agency carried out the investigation and on completion of the same filed the charge-sheet before the Court of the learned JMFC, Talaja. However, since, the case was exclusively triable by the Court of Sessions it was committed before the Sessions Court, Bhavnagar, and was numbered as Sessions Case No. 20 of 1996.
Page 3 of 22 Downloaded on : Sun Sep 17 20:58:16 IST 2023NEUTRAL CITATION R/CR.A/993/1996 JUDGMENT DATED: 19/01/2023 undefined 2.5 In order to prove its case before the trial Court, the prosecution examined nine witnesses and also produced the relevant documentary evidences.
2.6 On completion of the trial, the trial Court recorded the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter, 'the Code') and then passed the judgment and order of acquittal.
Hence, the present appeal.
3. Learned APP, Mr. Dave, appearing for the appellant-State mainly relied on the evidence of PW- 4-Raniben, who was examined vide Exhibit-12 and who happened to be the wife of the deceased-Bhikhabhai.
3.1 Learned APP, Mr. Dave, submitted that PW-4, in her examination-in-chief, Exhibit-12, specifically stated that on the date of the alleged incident, i.e. on 02.11.1995, while she was present at her home along with her husband-Bhikhabhai, the opponent- accused had come to her house in the evening and had asked her husband-Bhikhabhai to accompany him, i.e. the opponent, to village Zanjmer. PW-4, further, stated that, since, her husband had to make payment to the daily-wage labourers, the deceased-Bhikhabhai agreed to accompany the opponent.
3.1.1 By relying on this piece of evidence of PW-
Page 4 of 22 Downloaded on : Sun Sep 17 20:58:16 IST 2023NEUTRAL CITATION R/CR.A/993/1996 JUDGMENT DATED: 19/01/2023 undefined 4, learned APP submitted that the deceased-Bhikhabhai was last seen alive in the company of the opponent- accused and on the next day, i.e. on 03.11.1995, the dead-body of Bhikhabhai was found.
3.2 Learned APP, Mr. Dave, next placed reliance on the evidence of PW-5-Bababhai Thobhan, who was examined as PW-5 vide Exhibit-13 and who happened to be the original complainant as well as the real brother of the deceased-Bhikhabhai.
3.3 Learned APP, Mr. Dave, also placed reliance on the evidence of PW-6-Bhupatbhai Malabhai, Exhibit-15, who was a witness to the panchnama, Exhibit-16 and Exhibit-17.
3.3.1 By relying on the evidence of PW-6, learned APP submitted that this witness fully supported the case of the prosecution, so far as the panchnama, Exhibits- 16 and 17, are concerned.
3.4 Learned APP, Mr. Dave, thereafter, submitted that the muddamal weapon, i.e. the 'kinfe', which was allegedly used in committing the crime in question, was seized at the instance of the opponent-accused and a Discovery Panchnama was also prepared to that effect on 05.11.1995.
3.4.1 Learned APP, further, submitted that blood stains were found on the aforesaid knife, i.e. Page 5 of 22 Downloaded on : Sun Sep 17 20:58:16 IST 2023 NEUTRAL CITATION R/CR.A/993/1996 JUDGMENT DATED: 19/01/2023 undefined muddamal Article No.6, and the same was sent to FSL for its examination and as per the Serological Report of FSL, Exhibit-34, the group of the blood found on clothes of the opponent-accused and Muddamal Article NO.6-knife was of 'AB' group, which was the blood group of the deceased-Bhikhabhai.
3.5 By relying on the evidence of the aforesaid witnesses, learned APP, Mr. Dave, submitted that the trial Court ought to have held that the prosecution has successfully and beyound reasonable doubt proved its case against the opponent-accused. It was, therefore, submitted that the impugned judgment and order of acquittal passed by the trial Court be quashed and set aside.
3.6 In support of his submissions, learned APP placed reliance on the decision of the Apex Court, rendered in the case of 'RAVI AND OTHERS VS. STATE OF KARNATAKA', (2018) 16 SCC 102, more particularly, the observations made by the Apex Court in Paragraphs-3 and 5, thereof.
4. On the other hand, learned Advocate, Mr. Shah, appearing for the opponent-original accused strongly opposed this appeal and supported the judgment and order of acquittal passed by the concerned trial Court.
4.1 Learned Advocate, Mr. Shah, submitted that the Page 6 of 22 Downloaded on : Sun Sep 17 20:58:16 IST 2023 NEUTRAL CITATION R/CR.A/993/1996 JUDGMENT DATED: 19/01/2023 undefined prosecution, in support of its case, examined three so called eye-witnesses before the trial Court, viz. PW-1-Popat Madhabhai Bariya, PW-2-Vallabhbhai Gemabhai Siyal and PW-3-Raman Vejabhai Makwana. However, none of these witnesses supported the case of the prosecution and therefore, the trial Court has rightly passed the order of acquittal in favour of the opponent-original accused.
4.2 Learned Advocate, Mr. Shah, submitted that the case of the prosecution rests only on the aspect of 'last seen together' and in order to prove the same, the prosecution relied on the evidence of PW-4- Raniben Bhikhabhai, i.e. the wife of the deceased.
4.2.1 Learned Advocate, Mr. Shah, submitted that PW-4, in her evidence, has only stated that on the date of the alleged incident, i.e. on 02.11.1995, the opponent-accused had come to her house in the evening and had asked her husband-late Bhikhabhai to accompany him to village Zanjmer.
4.2.2 Learned Advocate, Mr. Shah, relied upon the deposition given by PW-8-Somabhai Naranbhai Patel, who was discharging duties as PSI at Datha Police Station, at the relevant point of time. Referring to the cross-examination of PW-8, learned Advocate, Mr. Shah, submitted that PW-8 specifically admitted that during the course of investigation, it was not revealed as to in which tempo, the deceased-
Page 7 of 22 Downloaded on : Sun Sep 17 20:58:16 IST 2023NEUTRAL CITATION R/CR.A/993/1996 JUDGMENT DATED: 19/01/2023 undefined Bhikhabhai had gone to village Zajmer. PW-8, in his cross-examination, has further stated that it is true that the opponent-accused had gone from Bodki to Pithalpur in the tempo of Bhura Pata and it was not revealed, during the course of investigation, that the deceased-Bhikhabhai had also traveled in the said tempo, i.e. the tempo of Bhura Pata.
4.3 Learned Advocate, Mr. Shah, then, invited the attention of this Court to the List of Witnesses, Exhibit-4, which was produced before the trial Court, concerned. By referring to list, Exhibit-4, learned Advocate, Mr. Shah, stated that the name of Bhura Pata, in whose tempo the opponent-accused had gone to village Pithalpur on 02.11.1995, appears at Sr. No.14 of the list, Exhibit-4 and despite that Bhura Pota was not examined by the prosecution for the reasons best known to them and was, instead, dropped as a witness.
4.4 Learned Advocate, Mr. Shah, therefore, submitted that the trial Court has committed no error in passing the impugned judgment and order of acquittal.
4.5 In support of his submissions, learned Advocate, Mr. Shah, has placed reliance on the decision of the Apex Court, rendered in the case of 'RAJESH PRASAD VS. STATE OF BIHAR AND ANOTHER', (2022) 3 SCC 471, more particularly, the observations made by the Apex Court in Paragraphs- 31.1 to 31.2.2, thereof.
Page 8 of 22 Downloaded on : Sun Sep 17 20:58:16 IST 2023NEUTRAL CITATION R/CR.A/993/1996 JUDGMENT DATED: 19/01/2023 undefined 4.6 Learned Advocate, Mr. Shah, also placed reliance on the observations made by the Apex Court, at Paragraphs-42 and 44, in the case of 'SHAHAJA @ SHAHAJA MODH. SHAIKH VS. STATE OF MAHARASHTRA', AIR Online 2022 SC 1011.
5. We have heard the learned Advocates for the parties and also perused the material, which was placed on record before the trial Court concerned, including the impugned judgment and order of acquittal, Dated: 26.08.1996, passed by the trial Court, concerned.
5.1 It is the case of the prosecution that the deceased-Bhikhabhai left his house in the company of the opponent-accused on 02.11.1995, in the evening hours, for going to village Zanjmer, where, during the night hours, the opponent-accused inflicted knife injuries on the deceased-Bhikhabhai and caused his death.
5.1.1 In order to prove its case, the prosecution placed reliance on the evidence of three witnesses, viz. PW-1-Popat Madhabhai Bariya, PW-2-Vallabhbhai Gemabhai Siyal and PW-3-Raman Vejabhai Makwana. However, none of these witnesses supported the case of the prosecution and they were declared hostile.
5.2 At this stage, it would be relevant to refer to Page 9 of 22 Downloaded on : Sun Sep 17 20:58:16 IST 2023 NEUTRAL CITATION R/CR.A/993/1996 JUDGMENT DATED: 19/01/2023 undefined the deposition of PW-4-Raniben, who happens to be the widow of the deceased-Bhikhabhai, and whose evidence is relied on by the prosecution to prove the theory of 'last seen together'. PW-4, in her deposition, stated that on the date of the alleged incident, i.e. on 02.11.1995, after the sun set, the opponent- accused had come to their house and had asked the deceased-Bhikhabhai to accompany him to village Zajmer and since, the deceased-Bhikhabhai had to hire some daily-wage workers for agricultural purpose and also had to make payment to some of the daily-wage workers, the deceased-Bhikhabhai had agreed to accompany the opponent-accused.
5.3 Here, it would also be relevant to refer to the deposition of PW-5-Baba Thobhan, who happens to be the first informant and the younger brother of the deceased-Bhikhabhai.
5.3.1 Now, if, the deposition of this witness is examined, then, he has stated that he did not see his brother, i.e. the deceased-Bhikhabhai, in the company of the opponent-original accused, leaving the house in the evening for going to village Zanjmer at about 07:00 p.m., on 02.11.1995. Thus, the deposition of this witness shall not help the case of the prosecution in nay manner.
5.4 So far as the deposition of PW-6-Bhupatbhai Malabhai, who was a witness to the Arrest Panchnama Page 10 of 22 Downloaded on : Sun Sep 17 20:58:16 IST 2023 NEUTRAL CITATION R/CR.A/993/1996 JUDGMENT DATED: 19/01/2023 undefined of the opponent-accused, Exhibit-16, and the panchnama of seizure of muddamal Article No.6-kinfe, Exhibit-17, is concerned, it is true that PW-6 has fully supported the case of the prosecution with regard to Panchnama, Exhibits-16 and 17.
5.4.1 However, if, the evidence of PW-6 is carefully scrutinized, it emerges that when the arrest panchnama of the opponent-accused was drawn on 05.11.1995, i.e. after the period of three days from the date of commission of the alleged offence, i.e. on 02.11.1995, the opponent-accused was wearing the same clothes, which he had allegedly put on at the time of committing the offence. It is also stated in the said panchnama that the clothes put on by the opponent-accused were having blood stains.
5.4.2 Further, from a perusal of the Panchnama, Exhibit-17, i.e. the panchnama of seizure of Muddamal Article No.6-knife, Exhibit-17, it appears that the preliminary panchnama was drawn at Primary School, Bodki on 05.11.1995, between 11:30 a.m. to 11:40 a.m. and thereafter, the second part of the panchnama was drawn at the house of the opponent-accused. Now, if, the time of the second part of the panchnama is seen, it was drawn between 12:00 p.m. to 12:45 p.m. 5.4.2.1 In regard to the above, the trial Court has specifically observed that the ink of the pen used in drawing the first part of panchnama and the ink of Page 11 of 22 Downloaded on : Sun Sep 17 20:58:16 IST 2023 NEUTRAL CITATION R/CR.A/993/1996 JUDGMENT DATED: 19/01/2023 undefined the pen used in drawing the second part of the panchnama are different and therefore, it appears that the time of the commencement and completion of preliminary panchnama and final panchnama were written, subsequently. The trial Court has also noted that in the final Panchnama, Exhibit-17, firstly, the time of commencement of panchnama was written as 11:40 a.m.. However, later on, the same was changed to 12:00 p.m.. In view of such infirmities, in drawing Panchnama, Exhibit-17, the trial Court concluded that the said panchnama was not prepared in the presence of the panchas.
5.5 Insofar as the deposition of PW-8-Somabhai Naranbhai Patel, who was discharging duties as PSI, Datha Police Station, is concerned, he (PW-8) had recorded the complaint given by PW-5-Bababhai Thobhan and had carried out the investigation.
5.5.1 Now, if, the cross-examination of PW-8 is carefully seen, it emerges that PW-8 stated that, during the course of investigation, it was not revealed that the deceased-Bhikhabhai and the opponent-accused had gone from village Bodki to village Zanjmer in the same tempo. PW-8, in his cross-examination, also admitted that, during the course of investigation, it was revealed that the opponent-accused had gone to village Pithalpur in the tempo of one Bhura Pata on 02.11.1995 and at that time, the deceased-Bhikhabhai was not accompanying Page 12 of 22 Downloaded on : Sun Sep 17 20:58:16 IST 2023 NEUTRAL CITATION R/CR.A/993/1996 JUDGMENT DATED: 19/01/2023 undefined the opponent-accused.
5.5.2 Thus, from the evidence of PW-8-IO, it is clear that, during the course of investigation, it was revealed that on 02.11.1995, the opponent-accused had gone to village Pithalpur in the tempo of Bhura Pata and at that time, the deceased was not present with him.
5.6 Here, it may be noted that, though, the prosecution had cited Bhura Pata as a witness, in the List of Witnesses, Exhibit-4, at Sr. No.14, the prosecution did not examine the said witness. This would also create doubt about the story put-forth by the prosecution. Under the circumstances, the trial Court rightly did not place reliance on the evidence of PW-6 and PW-8 and did not believe the case of the prosecution.
5.7 At this stage, it would be relevant to refer to the observations made by the Apex Court at Paragraphs- 3 and 5 in 'RAVI AND OTHERS' (Supra), which reads as under;
"3. The accused appellants and the deceased along with Suma (PW1) and Rama Nayak (PW2) were together on 26th December, 2004, the precise time being around 1.30 p.m.. The dead body was recovered after a gap of four (04) days i.e. on 30th December, 2004. The post-mortem report indicated that the death had occurred 30 hours prior to the time of post-mortem examination.
The medical evidence, therefore, would be suggestive of the fact that the dead-body was recovered after about two (02) days from Page 13 of 22 Downloaded on : Sun Sep 17 20:58:16 IST 2023 NEUTRAL CITATION R/CR.A/993/1996 JUDGMENT DATED: 19/01/2023 undefined 1.30 p.m. of 26th December, 2004.
5. "Last seen together" is certainly a strong piece of circumstantial evidence against an accused. However, as it has been held in numerous pronouncements of this Court, the time-lag between the occurrence of the death and when the accused was last seen in the company of the deceased has to be reasonably close to permit an inference of guilt to be drawn. When the time-lag is considerably large, as in the present case, it would be safer for the Court to look for corroboration. In the present case, no corroboration is forthcoming. In the absence of any other circumstances which could connect the accused appellants with the crime alleged except as indicated above and in the absence of any corroboration of the circumstance of 'last seen together' we are of the view that a reasonable doubt can be entertained with regard to the involvement of the accused appellants in the crime alleged against them. The burden under Section 106 of the Indian Evidence Act, 1872 would not shift in the aforesaid fact situation, a position which has been dealt with by this Court in Malleshappa vs. State of Karnataka1 wherein the earlier view of this Court Mohibur Rahman vs. State of Assam2 has been extracted. The said view in Mohibur Rahman (supra) may be profitably extracted below:
"10. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. In the present case there is no such proximity of time and place. As already noted the dead body has been recovered about 14 days after the date on which the deceased was last seen in the company of the accused. The distance between the two places is about 30-40 km. The event of the two accused persons having departed with the deceased and thus last seen together (by Lilima Page 14 of 22 Downloaded on : Sun Sep 17 20:58:16 IST 2023 NEUTRAL CITATION R/CR.A/993/1996 JUDGMENT DATED: 19/01/2023 undefined Rajbongshi, PW 6) does not bear such close proximity with the death of the victim by reference to time or place. According to Dr. Ratan Ch. Das the death occurred 5 to 10 days before 9-2-1991. The medical evidence does not establish, and there is no other evidence available to hold, that the deceased had died on 24-1-1991 or soon thereafter. So far as the accused Mohibur Rahman is concerned this is the singular piece of circumstantial evidence available against him. We have already discussed the evidence as to recovery and held that he cannot be connected with any recovery. Merely because he was last seen with the deceased a few unascertainable number of days before his death, he cannot be held liable for the offence of having caused the death of the deceased. So far as the offence under Section 201 IPC is concerned there is no evidence worth the name available against him. He is entitled to an acquittal."
5.7.1 From the aforesaid observations made by the Hon'ble Apex Court herein above, it can be said that the time-gap between the person, who was found in the company of the deceased, and the recovery of the dead-body is a relevant factor. However, the aforesaid decision would render no assistance to the case of the prosecution.
5.7.2 In the present case, though, it is the case of the prosecution, relying on the deposition of PW- 4-Raniben, that the deceased had left the house in the company of the opponent-accused on 02.11.1995, from the evidence of PW-8-IO, it has come on record that, in fact, the opponent-accused had gone to village Pithalpur in the tempo of Bhura Pata and at that time, the deceased-Bhikhabhai was not accompanying the opponent-accused.
Page 15 of 22 Downloaded on : Sun Sep 17 20:58:16 IST 2023NEUTRAL CITATION R/CR.A/993/1996 JUDGMENT DATED: 19/01/2023 undefined 5.8 Now, if, the observations made by the Apex Court in Paragraphs- 31.1 to 31.2.2 in the case of 'RAJESH PRASAD' (Supra) are seen, the same would help the case of the opponent-accused, which reads thus;
"31.1 Ordinarily, this Court is cautious in interfering with an order of acquittal, especially when the order of acquittal has been confirmed upto the High Court. It is only in rarest of rare cases, where the High Court, on an absolutely wrong process of reasoning and a legally erroneous and perverse approach to the facts of the case, ignoring some of the most vital facts, has acquitted the accused, that the same may be reversed by this Court, exercising jurisdiction under Article 136 of the Constitution. [State of U.P. v. Sahai, AIR 1981 SC 1442] Such fetters on the right to entertain an appeal are prompted by the reluctance to expose a person, who has been acquitted by a competent court of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior court. [Arunachalam v. Sadhananthan, AIR 1979 (SC) 1284] An appeal cannot be entertained against an order of acquittal which has, after recording valid and weighty reasons, has arrived at an unassailable, logical conclusion which justifies acquittal. [State of Haryana v. Lakhbir Singh] 31.2 However, this Court has on certain occasions, set aside the order of acquittal passed by a High Court. The circumstances under which this Court may entertain an appeal against an order of acquittal and pass an order of conviction, may be summarised as follows:
31.2.1 Where the approach or reasoning of the High Court is perverse:
a) Where incontrovertible evidence has been rejected by the High Court based on suspicion and surmises, which are rather unrealistic. [State of Rajasthan v. Sukhpal Singh] For example, where direct, unanimous accounts of the eyewitnesses, were discounted without cogent reasoning; [State of UP v. Shanker] Page 16 of 22 Downloaded on : Sun Sep 17 20:58:16 IST 2023 NEUTRAL CITATION R/CR.A/993/1996 JUDGMENT DATED: 19/01/2023 undefined
b) Where the intrinsic merits of the testimony of relatives, living in the same house as the victim, were discounted on the ground that they were 'interested' witnesses; [State of UP v. Hakim Singh]
c) Where testimony of witnesses had been disbelieved by the High Court, on an unrealistic conjecture of personal motive on the part of witnesses to implicate the accused, when in fact, the witnesses had no axe to grind in the said matter. [State of Rajasthan v. Sukhpal Singh]
d) Where dying declaration of the deceased victim was rejected by the High Court on an irrelevant ground that they did not explain the injury found on one of the persons present at the site of occurrence of the crime. [Arunachalam v. Sadhanantham]
e) Where the High Court applied an unrealistic standard of 'implicit proof' rather than that of 'proof beyond reasonable doubt' and therefore evaluated the evidence in a flawed manner. [State of UP v. Ranjha Ram]
f) Where the High Court rejected circumstantial evidence, based on an exaggerated and capricious theory, which were beyond the plea of the accused;
[State of Maharashtra v.
ChampalalPunjaji Shah, AIR 1981 SC 1675] or where acquittal rests merely in exaggerated devotion to the rule of benefit of doubt in favour of the accused. [Gurbachan v. Satpal Singh].
g) Where the High Court acquitted the accused on the ground that he had no adequate motive to commit the offence, although, in the said case, there was strong direct evidence establishing the guilt of the accused, thereby making it unnecessary on the part of the prosecution to establish 'motive.' [State of AP v. Bogam Chandraiah] 31.2.2 Where acquittal would result is gross miscarriage of justice:
a) Where the findings of the High Court, disconnecting the accused persons with the crime, were based on a perfunctory consideration of evidence, [State of UP v.Page 17 of 22 Downloaded on : Sun Sep 17 20:58:16 IST 2023
NEUTRAL CITATION R/CR.A/993/1996 JUDGMENT DATED: 19/01/2023 undefined Pheru Singh] or based on extenuating circumstances which were purely based in imagination and fantasy. [State of Uttar Pradesh v. Pussu]
b) Where the accused had been acquitted on ground of delay in conducting trial, which delay was attributable not to the tardiness or indifference of the prosecuting agencies, but to the conduct of the accused himself; or where accused had been acquitted on ground of delay in conducting trial relating to an offence which is not of a trivial nature. [State of Maharashtra v. ChampalalPunjaji Shah] [Source : Durga Das Basu - "The Criminal Procedure Code, 1973" Sixth Edition Vol.II Chapter XXIX]"
5.9 Similarly, the observations made by the Apex Court in Paragraphs-42 and 44 in the case of 'SHAHAJA @ SHAHAJA MODH. SHAIKH' (Supra) would also help the opponent-accused, which reads thus;
"42. The conditions necessary for the applicability of Section 27 of the Act are broadly as under:
(1) Discovery of fact in consequence of an information received from accused;
(2) Discovery of such fact to be deposed to; (3) The accused must be in police custody when he gave informations; and (4) So much of information as relates distinctly to the fact thereby discovered is admissible - Mohmed Inayatullah vs The State of Maharashtra: AIR (1976) SC 483: (1975) Cur LJ 668 Two conditions for application -Page 18 of 22 Downloaded on : Sun Sep 17 20:58:16 IST 2023
NEUTRAL CITATION R/CR.A/993/1996 JUDGMENT DATED: 19/01/2023 undefined (1) information must be such as has caused discovery of the fact; and (2) information must relate distinctly to the fact discovered- Kirshnappa vs State Of Karnataka : AIR (1983) SC 446 :
(1983 )Cr LJ 846 XXX XXX XXX
44. The scope and ambit of Section 27 of the Act were illuminatingly stated in Phulukuri Kottaya v. Emperor, AIR (1947) PC 67, which have become locus classicus, in the following words:
"It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed 'A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
6. It is the cardinal principle of criminal jurisprudence that in an acquittal appeal, if, other view is possible, then also, the appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or Page 19 of 22 Downloaded on : Sun Sep 17 20:58:16 IST 2023 NEUTRAL CITATION R/CR.A/993/1996 JUDGMENT DATED: 19/01/2023 undefined demonstrably unsustainable.
6.1 In the instant case, the learned APP for the applicant has not been able to point out, as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
6.2 As observed by the Hon'ble Supreme Court in the case of 'RAJESH SINGH & OTHERS VS. STATE OF UTTAR PRADESH', reported in (2011) 11 SCC 444, and in the case of 'BHAIYAMIYAN ALIAS JARDAR KHAN AND ANOTHER VS. STATE OF MADHYA PRADESH', reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning given by the learned trial Court is found to be perverse, the acquittal cannot be set aside. It is further observed that High Courts' interference in such appeals is somewhat circumscribed and if, the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.
6.3 We have independently re-appreciated the evidence produced by the prosecution before the learned Trial Court and also examined the reasoning recorded by the learned Trial Court, while passing the impugned judgment and order of acquittal and we Page 20 of 22 Downloaded on : Sun Sep 17 20:58:16 IST 2023 NEUTRAL CITATION R/CR.A/993/1996 JUDGMENT DATED: 19/01/2023 undefined are of the view that, if, in the light of the above circumstances, the learned Trial Court felt that the accused could get the benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, even though we are of the opinion that in an appeal against acquittal, powers of appellate Court are as wide as that of the Trial Court and it can review, re-appreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the the facts and circumstances of the present case, as discussed herein above, the view taken by the learned Trial Court for acquitting the accused seems to be possible and plausible. Therefore, on the basis of evidence, even if, it is to be assumed that the other view is equally possible, even then, it is well settled and well-established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the learned Trial Court, it ought not to be disturbed by the Appellate Court.
6.4 Considering the aforesaid facts and circumstances of the present case and the law laid down by the Hon'ble Supreme Court in the aforesaid decisions, upon which the reliance is placed by the learned advocates appearing for the parties, and while considering the scope of appeal under Section 378 of the Code, no case is made out for interference in the impugned judgment and order of acquittal Page 21 of 22 Downloaded on : Sun Sep 17 20:58:16 IST 2023 NEUTRAL CITATION R/CR.A/993/1996 JUDGMENT DATED: 19/01/2023 undefined passed by the concerned Trial Court. In view of the above discussion, we are of the considered view that the trial Court has committed no error in passing the judgment and order of acquittal in favour of the opponent-original accused.
7. Resultantly, the present appeal fails and is DISMISSED, accordingly. The judgment and order, Dated: 23.08.1996, passed by the learned Additional Session Judge, Bhavnagar in Sessions Case No. 20 of 1996 is, hereby, CONFIRMED.
7.1 Bail bonds executed by the opponent-accused stands DISCHARGED.
7.2 Registry is directed to sent back R&P, if any, to the concerned trial Court, forthwith.
Sd./-
(VIPUL M. PANCHOLI, J) Sd./-
(HEMANT M. PRACHCHHAK,J) UMESH/-
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