Gujarat High Court
State Of Gujarat vs Dahyabhai Motibhai Rathod on 20 January, 2023
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
NEUTRAL CITATION
R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 532 of 1996
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be No
allowed to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair No
copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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STATE OF GUJARAT
Versus
DAHYABHAI MOTIBHAI RATHOD & 1 other(s)
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Appearance:
MS JIRGA JHAVERI APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Respondent No. 2
BAILABLE WARRANT UNSERVED for the Respondent(s) No. 1
MR SHAILESH C SHARMA(3450) for the Respondent(s) No. 1,2
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NEUTRAL CITATION
R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023
undefined
CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 20/01/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)
1. The appellant - State of Gujarat has preferred the present appeal under Section 378 of Criminal Procedure Code, 1973 against the judgment and order of acquittal dated 14.03.1996 passed by the learned Additional Sessions Judge, Nadiad in Sessions Case No. 224 of 1994.
2. It is contended by the appellant that the respondents - accused were charged and tried by the learned Additional Sessions Judge, Nadiad in Sessions Case No.224 of 1994 for the offences punishable under Sections 302, 201, 120B read with Section 34 of the Indian Penal Code wherein at the end of trial, by the impugned judgment and order dated 14.03.1996, the learned Additional Sessions Judge was pleased to acquit the respondents - accused. It is the contention of the appellant that the judgment and order of acquittal is against the law and Page 2 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined evidence on the record of the case and the learned Judge has not properly appreciated the evidence available on record. It is the further contention of the appellant that the learned Judge has committed an error in not considering the evidence of the witnesses who have supported the case of the prosecution and they have narrated the incident in detail about the role played by the accused. It is further contended by the appellant that the learned Judge below has unnecessarily put undue weight to minor contradictions and omissions in the evidence. It is also the contention of the appellant that the prosecution has proved its case beyond reasonable doubt and, therefore, the respondents - accused ought to have been convicted for the offences with which they were charged. According to the appellant, the entire evidence has not been properly appreciated by the learned Judge below and, therefore, the acquittal order is illegal. It is prayed by the appellant to set aside the impugned judgment and order of acquittal.
3. Briefly stated the case of the prosecution is that on 17.06.1994 at 7.00 a.m., accused Dahyabhai Motibhai, his father Motibhai Hamirbhai, Haribhai and other persons came in matador Page 3 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined and Haribhai told the complainant that accused Dahyabhai had received a phone call that he had met with an accident and when accused Dahyabhai was coming in a rickshaw to see him and in the away Rs.5000/- and a gold chain were looted from him and he was beaten. Accused Dahyabhai told that the phone call about accident was received on the phone of Dahyabhai Dabhi at 3.00 o'clock in night on 16.06.1994 and Dahyabhai Dabhi gave a message about the phone call at 4 o'clock in the morning. The accused further stated that, thereafter, Kalpana left with Rs.1,000/- from Anand in the bus going to Dwarka from Dabhoi and she informed through a phone call that she reached Limdi and further stated that, the accused was told to come quickly with the money and therefore, the accused left with Rs.5,000/- on the same day in the evening and when he was coming through Limdi highway in a rickshaw, the other passengers of the rickshaw looted him of Rs.5,000/- and a gold chain. Thereafter, the complainant informed the accused and the persons who had come that, the have not met with any accident and Kalpana has not yet reached there. Therefore, the complainant, the accused and the other persons decided to go to Limdi and informed about Page 4 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined the loot committed with the accused and missing of Kalpana to the police station. They came to Limdi Police Station at 03:00 hours on 17.06.1994 and at that time Head Constable was present in the police station, but the P.S.I. was not present. When the complainant had further conversation with the accused in the police station, thereupon the accused told that it might be happened that Kalpana had committed suicide in Sabarmati near Vataman Cross Road. Thereafter, the P.S.I. of Limdi who had gone to Rajkot came to the police station and inquired the complainant and the accused. Thereafter, P.S.I. told that accused Dahyabhai was speaking in indistinct manner and therefore, he took him in confidence and interrogated him further. In the interrogation of accused Dahyabhai by the P.S.I., it was revealed that at 5.00 o'clock in the morning on 16.06.1994, the accused took Kalpana on Luna and accused No.2 was also present with them on Luna at that time. Both the accused took Kalpana near a thorny tree on the left side of the road near railway crossing in the outskirts of Sojitra village. Since accused No.1 disliked Kalpana and due to frequent quarrels, accused No.1 and 2 killed Kalpana. The accused No.2 caught hold Kalpana and accused Page 5 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined No.1 inflicted repeated blows of knife on her abdomen and throat and killed her and thereafter, dragged her dead body under the thorny tree and after placing a cloth on her head, set it on fire. Thereafter, the P.S.I. came to the place shown by the accused with the complainant and the accused at night. But, since it was dark, the dead body could not be found. Thereafter in the morning, the accused showed dead body of Kalpana and thereafter, the complainant came to Sojitra Police Station with the P.S.I. of Limdi and the complainant filed the complaint against the accused.
4. Pursuant to the aforesaid FIR, the police started investigation and got postmortem report of the deceased and prepared panchnama of the scene of offence as well as recorded the statements of various witnesses and arrested the accused and seized muddamal articles and after completion of investigation, as the sufficient evidence was found, the police has filed the charge-sheet against the accused before the Judicial Magistrate, First Class. As the offence was triable by the Court of Sessions, the Judicial Magistrate, First Class has committed the case under Section 209 of the Criminal Procedure Code to the Page 6 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined Court of Sessions at Nadiad wherein it has been registered as Sessions Case No.224 of 1994.
5. The charge against the accused came to be framed by the learned Sessions Judge on 21.10.1995 vide Exhibit 5 for the aforesaid offences against the accused. On being explained it to them, the accused have denied having committed any offence. The accused pleaded not guilty to the charge and pleaded for trial and hence, the case was tried by the learned Additional Sessions Judge, Nadiad.
6. It appears from the records that to prove the case, the prosecution has examined in all nineteen witnesses which includes panchas, independent witnesses, doctors and police officers.
7. The prosecution has also produced twenty two documentary evidence which includes the copies of the postmortem report, various panchnamas and complaint etc.
8. After closure of the evidence, the statements of the Page 7 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined accused under section 313 of the Criminal Procedure Code, 1973 have been recorded wherein they denied of having committed any offence and have stated that they are innocent.
9. After hearing both sides and considering the evidence on records, the learned Sessions Judge by impugned judgment and order dated 14.03.1996 has acquitted the accused from all the charges levelled against them.
10. Being aggrieved by and dissatisfied with the aforesaid judgment and order of acquittal the appellant - State of Gujarat has preferred this Appeal.
11. We have heard Ms.Jirga Jhaveri, learned Additional Public Prosecutor for the appellant - State of Gujarat and Mr. Shailesh Sharma, learned advocate for the respondents at length.
12. Ms.Jhaveri, learned Additional Public Prosecutor for the appellant - State of Gujarat, while referring to the entire oral as well as documentary evidence, has assailed the impugned judgment and order and has submitted that the trial Court has not taken into consideration the circumstantial evidence Page 8 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined connecting the accused to the alleged offence in its proper perspective. She has submitted that the trial Court ought to have believed that the prosecution has been able to prove the charges levelled against the accused. She has submitted that there is circumstantial evidence produced before the Court below which clearly proves that the accused have committed the crime. She has submitted that there was a conspiracy to commit the murder and to destroy the evidence. According to her submission, the trial Court ought to have convicted the accused and ought to have imposed necessary sentence. She has prayed to allow the present appeal.
13. Per contra, learned advocate Mr.Sharma for the respondents - accused has supported the impugned judgment and order and has submitted that the trial Court has not committed any error of law and fact in acquitting the accused from the charges levelled against them. He has submitted that the prosecution has failed to establish the complete chain of the circumstances connecting the respondents with the alleged crime. He has submitted that the ingredients of the offence alleged against the accused are not proved beyond reasonable Page 9 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined doubt and, therefore, the trial Court has rightly acquitted the accused as the complainant has failed to prove the charge levelled against the accused. He has also submitted that there is no iota of evidence to connect the accused with the alleged crime. He has prayed to confirm the impugned judgment and dismiss the present appeal.
13.1 Mr.Sharma, learned advocate for the respondents has relied upon the following decisions:
(1) Mallikarjun Kodagali (Dead) represented through Legal Representatives Vs. State of Karnatka and others reported in (2019) 2 SCC 752;
(2) Chaman Lal Vs. State of Himachal Pradesh reported in (2020) 17 SCC 69;
(3) Chandrappa Vs. State of Karnataka reported in (2007) 4 SCC 415;
(4) State of Uttar Pradesh Vs. Banne reported in (2009) 4 SCC 271;
14. We have discussed and dealt with the evidence led by the prosecution as under:-
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NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined 14.1 P.W.2 Parmabhai Mangalbhai examined at Exhibit 13, who is father of the deceased. He has deposed that he called the deceased from the house of the accused Dahyabhai at Anand Police Station and the deceased came there. The deceased told him that why he has come there and thereupon, this witness has stated that Dahyabhai has sent the notice to him and, therefore, he came there. He has deposed that the deceased told him that the details which have been mentioned in the notice were not correct as the husband of the deceased was beaten her. He has deposed that the deceased told him to meet her husband and on account of angry, the husband of the deceased had written in the notice. He has further deposed that the deceased had not harassed the accused, however, accused no.1 had beaten her and, thereafter, after sometime the dispute came to be resolved between the deceased and accused and accused No.1 told him that he will apologize to Ashaben Dalal by face to face and confess his mistake and will not physically and mentally harass Kalpaben and keep her well. He has deposed that accused sent deceased by giving Rs.1000/- from Limdi on 16.06.1994 at 6.00 Page 11 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined a.m in a bus going towards Dhwarka from Dabhoi, however, the deceased has not reached yet and the deceased called the accused that the deceased reached at Limdi. He has deposed that accused No.1 had lodged the complaint with regard to loot of ornaments and missing of the deceased and thereupon, the police officer stated that some one had committed suicide in Sabarmati, near Vataman Cross Road. He has further deposed that as per say of Dahyabhai, they all reached at the place of incident where the deadbody of the deceased was found and there was injury mark on the portion of stomach and throat and, therefore, he lodged the complaint against accused No.1 at Sojitra Police Station.
In the cross-examination, this witness has deposed that first he met one Ashaben with regard to the matrimonial dispute between the deceased and the accused and, thereafter, the settlement came to be arrived at between the parties. He has admitted that some leaders of the village came to his house and asked about accused No.1 and the deceased at about 2.00 hours to 2.30 hours. He has deposed that they went to the place of occurrence in the night hours and that night was between 17 th Page 12 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined and 18th and he has no any information with regard to the murder of the deceased on 16th in evening hours and when they reached at the place of occurrence at 3.00 a.m. in night hours at that time the police were searching the deadbody of the deceased. He has deposed that he has not seen any injury on the left hand of the accused - Dahyabhai and when the deadbody was found in the morning hours at that time the Police Sub Inspector of Limdi Police Station has not carried out any type of panchnamas. It is stated that the police has drawn panchnamas but he did not know how many panchnamas were drawn at the scene of occurrence and at the scene of offence, except himself, accused police and 5 to 8 private persons were there and out of said persons, how many persons have signed the panchnama, he did not know. He has deposed that they reached at the scene of offence at about 1.00 p.m. to 2.00 p.m. and out of the said persons, there were two women and around 2.30 p.m. to 3.00 p.m., the police drew the panchnama of the scene of offence. He has stated that the police had recovered the blood stain knife, bangle, anklets, nose ring and there were two anklets. He has deposed that he did not remember that whether there was blood Page 13 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined on knife, bangle, anklets and nose ring and the clothes were blood stain. He has deposed that when the deadbody of Kalpnaben was taken for performing postmortem at that time he had seen accused - Dahyabhai. He has deposed that after performing postmortem, he had not seen the vehicle like Luna at Sojitra Police Station. It is stated that there was no any specific name or sign on the anklets.
14.2 P.W. 3 Mayuddin Mahomadbhai examined at Exhibit 13. He has deposed that in June 1994, he was serving as servant in Shakti Guesthouse at Limdi and maintained the register of the passengers. He has deposed that on 16.06.1994 at 10.00 p.m., accused no.1 Dahyabhai came and stated that his pocket has lost and, thereafter, he paid Rs.15/- towards charge of the room. He has deposed that on the next day at 6.30 a.m. four persons came in the matador and got up Dilipbhai and, then, they all had gone in matador. He has further deposed that on 16.06.1994 at 3.00 p.m., the police came and brought the register of the guesthouse and, thereafter, the police surrendered the same.
In his cross-examination, he has deposed that he was not Page 14 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined educated and he did not know how to write and read. He has further deposed that on 17.06.1994 at about 3.00 p.m., PSI of Sojitra Police Station came along with PSI, Limdi Police Station at that time accused no.1 Dahyabhai was along with them and thereafter they took the register and after half an hour, they surrendered the same. He has deposed that thousands of passengers had come, however, except Dahyabhai, he did not remember the face of anyone.
14.3 P.W.5 Bipinbhai Parmabhai examined at Exhibit 18. He has deposed that he is the son of the complainant. He has deposed that on 17.06.1994, he had gone for labour work and his mother came to call him and he returned back home and, thereafter, accused Dahyabhai and other persons set there. He has deposed that he came to know that his sister Kalpna proceeded from Anand in the bus to his house and some one looted the accused Dahyabhai at Limdi and his golden chain worth Rs.5,000/- was looted. He has deposed that no one had called the accused Dahyabhai nor called by any one with regard to the accident met with by the father of the accused.
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NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined In his cross-examination, this witness has stated that Kalpa was used to come at his home from her in-laws again and again and, thereafter, accused Dahyabhai and his relatives came and they understood Kalpa, then, sent her to in-laws house. 14.4 P.W.8 Ashaben Kanaiyalal Dalal examined at Exhibit 26. She has deposed that complainant Parmabhai came her institution and gave an application and along with an application he gave a copy of the notice which came to be given by accused no.1. As per the say of this witness, on the next day, Parmabhai called with regard to the application at her office and at that time, accused, deceased Kalpnaben, father of accused Dahyabhai, complainant himself and Haribhai came there. It is deposed by this witness that Kalpnaben informed her that she did not know about the notice given by accused no.1 and the deceased further informed this witness that accused no.1 mentally and physically harassed to her (deceased) and against her will, accused no.1 aborted. She has deposed that Kalpnaben told her that accused no.2 harassed her and instigated accused no.1. It is stated that thereafter, a settlement arrived at between accused no.1 and Kalpnaben and Kalpnaben had gone Page 16 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined with accused no.1 and deed was executed on stamp paper of Rs.10/- to that effect. She has further deposed that Kalpnaben came on 09.01.1994 and deposed that accused no.1 and accused no.2 both have harassed her and she (Kalpnaben) told her to call accused no.1 and, thereafter on 16.02.1994, Kalpnaben came to her institution but accused no.1 was not come and Kalpnaben has also told her that her father-in-law has also harassed her and spoken anything.
14.5 P.W.9 Dahyabhai Virabhai Dabhi examined at Exhibit 29, who has deposed that Dahyabhai is residing near his house just about three houses. He has deposed that on 15.06.1994, he received a phone call from Limdi and informed him that his father met with an accident and, therefore, to send his sister and husband of his sister. He has further deposed that additionally a telephone caller also informed him that accused no.1 came with an amount of Rs.8,000/- to Rs.9,000/- and if no arrangement was made, then, to send his sister on the next day in the morning and, thereafter he went to give the news to the accused at 7.00 p.m. at that time, deceased Kalpnaben and accused Dahyabhai were present and they were arranging to take meal and it was Page 17 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined not proper to give this type of news, he go home. He has deposed that after sometime, again he went to the house of the accused and gave the news which he received in telephone and, thereupon, Kalpnaben was crying. He has also deposed that on the next day at 7.00 a.m., they had gone out of station and returned back at 5.00 p.m. and when he came back at his home at 5.00 p.m., he received a message that a phone call came from Limdi, which was received by one Manishbhai, the guest of Shivabhai, who resided near him. As per the say of this witness, on 16.06.1994 at 10.00 p.m. a phone call came, in which, it was stated that D. M. Rathod has spoken and his Rs.5,000/- had been looted and said (Rathod) told him to inform this fact to his uncle Haribhai and he gave the message to his uncle and this witness has arranged the matador, in which Haribhai and Rajubhai proceeded to go to Limdi between 12.30 a.m. to 1.00 a.m. In his cross-examination, this witness has deposed that he could not recognize the voice of those person who called him. 14.6 P.W.18 Purshottam Bhimjibhai Maher examined at Exhibit
51. As per the deposition of this witness, he used to perform his Page 18 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined duty as the P.S.I. at Limdi Police Station in June 1994. He has deposed that on 17.06.1994, he had gone to Rajkot and had returned to Limdi Police Station at about 11.45 p.m. and when he returned to Limdi Police Station in the night, Kanaksinh, the Sarpanch of Jobala village and other persons had come to the police station at that time accused Dahyabhai was also with them. He has deposed that the complainant Parmabhai had stated to the accused Dahyabhai that Kalpana had left in the bus, but she had not reached his place, whereas, the accused Dahyabhai stated about occurrence of the loot. On the basis thereof, the P.S.O. had made an entry as 'a noteworthy'. As stated by this witness, the accused Dahyabhai was questioned whereof he stated that Kalpana might have committed a suicide and then he began to circumvent the questions. Therefore, the witness gave assurance to win his confidence and questioned him again. He has deposed that during his investigation, it was revealed that accused no.1 and 2 and deceased Kalpana had left for Limdi on a moped of Luna make from Anand and as accused no.1 did not like Kalpana, he had killed her at the outskit of village Sojitra. Further, the witness has deposed that with a view Page 19 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined to verify these facts, he left in the government vehicle along with accused no.1 Dahyabhai, the complainant Parmabhai and other police personnel had gone at the place as stated by the accused and at that time it was 4.00 in the morning. He has deposed that accused no.1 went to the south side of the road into a farm and tried to search there, but, as it was dark, the dead body could not be found. As stated by this witness, accused no.1 Dahyabhai told him that he would show him the dead body when it would be daylight and, therefore, all of them came back to the road and thereafter, at about 8.30 to 9.00 in the morning, when it was light, the accused Dahyabhai had showed the dead body of deceased Kalpana. As further stated by this witness, all of them went to Sojitra Police Station, thereafter, the complainant Parmabhai gave a complaint and at about 10.00 to 10.30 in the morning, he left for Limdi from Sojitra Police Station. The witness has further deposed that the accused had told him that a gold- chain worth Rs.5000/- had been looted, but, he did not believe him, he had not investigated thereabout.
During the cross-examination, the witness has deposed that he had never received any information about an entry for Page 20 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined the noteworthy with regard to occurrence of loot with the accused Dahyabhai. He has further deposed that in his statement before the police, the accused Dahyabhai had not dictated any fact with regard to theft of a gold-chain worth Rs.5000/- as stated by him and moreover, neither had it been dictated that he would not give a complaint about the theft. Further, the witness has deposed that it is a duty of the police officer to register an offense as soon as a cognizable offense is declared. As stated by this witness, it did not appear to him that any offense had taken place after he questioned accused no.1. The witness has further stated that when they left for Sojitra from Limdi Police Station, he did not have exact information as to whether Kalpana was murdered or not and therefore, he did not find it necessary to register an offense. The witness has deposed that no any preliminary panchnama was drawn when they left from Limdi Police Station. As stated by this witness, when they reached the spot at about 4.00 hours in the morning, they tried to discover the body under light of a torch, but the dead body could not be found from the place shown by the accused Dahyabhai. As stated by this witness, Sojitra Police Station was Page 21 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined at a distance of about 4 km from the place of incident. The witness has further stated that the place where the dead body was lying was easily accessible to anyone. As stated by this witness, after the dead body was found, all of them went to Sojitra Police Station where the complainant and the other persons left the vehicle and the witness left for Limdi. As stated by this witness, he had not met the P.S.O. of Sojitra Police Station or any other staff member of the police station. The witness has further stated that there was no specific reason as to why he departed for Limdi without handing over accused no.1 to the police though it was a serious offense such as a murder. He has further stated that he did not want to give any explanation for not handing over accused no.1 directly to Sojitra Police Station. As stated by this witness, he did not believe the facts stated by the accused Dahyabhai and therefore, he did not make any entry thereabout. The witness further has stated that it did not occur that he had gone to an S.T.D. Booth or Shakti Guest House at Limdi along with P.S.I. Shri Kharadi. 14.7 P.W.19 Vinodbhai Dhanjibhai Kharadi examined at Exhibit
53. As stated by him, the complainant Parmabhai Mangalbhai Page 22 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined gave the complaint at Exhibit 54 before him on 18.06.1994 at 11.00 am at Sojitra Police Station and on that basis, the offence was registered and he had taken over the investigation. As deposed by this witness, he left for the place of incident along with panch witnesses and at that time, upon meeting Mamlatdar on the way, yadi for inquest panchnama was given to him and he also accompanied them to the place of incident and upon reaching the place of incident, inquest panchnama of the dead body was drawn. As deposed by this witness, thereafter, the dead body was sent for postmortem and panchnama of the scene of offence was drawn in presence of panch witnesses and cloth, pieces of bangle, control sand, sand stained with blood were seized as per the panchnama at Exhibit 37. This witness has deposed that he returned to Sojitra police station at about 5.00p.m. to 05.30 p.m., at that time, accused no.1 and 2 were present there and panchnama of their physical condition was drawn and then they were arrested. This witness has deposed that accused no.1 has voluntarily shown the weapon which was used in the commission of offence and upon asking about the vehicle and the anklet of the deceased, a detailed panchnama Page 23 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined was drawn in that regard and upon reaching the place shown by accused no.1, knife stained with blood, jeans shirt and blue colored pant stained with blood, metal anklet and blood stained rubber grips of the steering of Luna moped from the balcony were seized in presence of panch witnesses. He has deposed that thereafter, statements of the concerned witnesses were recorded and accused no.1 and 2 showed the place of incident on 19.06.1994 and the panchnama to that effect was drawn in that regard. He has deposed that on n the same day, he went to Limdi from Sojitra along with accused no.1 and recorded statements of Manishkumar Mehta, Mayuddin Malek, H.C. of Limdi police station Mavjibhai, P.S.I. Maher and other witnesses. He has deposed that thereafter, on the next day, xerox of the notices exchanged between Kalpana, brother of the deceased Kalpana namely Bipinbhai and accused no.1, was obtained from the complainant. As stated by this witness, on 20.06.1994, accused no.1 voluntarily stated to show the sandal of the deceased Kalpanaben and said sandals were seized as per panchnama at Exhibit 43. As stated by this witness, on 21.06.1994, the seized muddamal was sent to the Forensic Page 24 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined Science Laboratory with forwarding note and the report of F.S.L. was received on 07.09.1994 and on 30.06.1994, xerox of the papers of case between accused no.1 and Kalpanaben was obtained from Ashaben Dalal. Thereafter, charge-sheet was filed against the accused.
In the cross-examination, the witness stated that when the complainant Parmabhai came to Sojitra Police station, accused no.1 was not with him and accused no.1 was seen for the first time on 18.06.1994 at 11.30 at Sojitra Police station. As stated by this witness, when the complaint was recorded, he did not have the information as to where the dead body was and where the offence was committed. This witness has stated that accused no.1 Dahyabhai was not with him when inquest panchnama and panchnama of the place of incident was drawn and he was made to sit at Sojitra Police station and he was not arrested. As stated by this witness, accused no.1 was arrested on 18.06.1994 at 6.15. This witness has deposed that when panchnama of physical condition of accused no.1 was drawn, marks of abrasion due to thorns were observed on the right palm and accused no.1 was sent to Hospital for treatment of the said injuries. As stated by Page 25 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined this witness, he has not conducted any investigation as to what was the blood group of accused no.1 and the deceased Kalpanaben. This witness has stated that card of malaria department, having written F.M.Solanki, Filipbhai Motibhai Solanki, was affixed on the house which he visited with accused on 18.06.1994 at Anand. He did not conduct investigation as to why the person got the key from whom the accused obtained key and opened the lock he did not know that his statement was recorded. As stated by this witness, statement of Filipbhai Motibhai Solanki was never recorded and Luna was registered with the R.T.O. in the name of Shankarbhai Bhupatsinh Rathodand the evidence was obtained in that regard but statement of Shankarbhai was not recorded. As stated by this witness, information regarding when and who murdered Kalpanaben was obtained after recording statement of P.S.I. Maher. The witness stated that no eye witness of the incident was found during the investigation. This witness stated that it was not found necessary as to why P.S.I. Maher did not register the offence regarding murder of Kalpanaben at Limdi.
15. Thus, the law on the issue can be summarised to the effect Page 26 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.
16. In the case of Mallikarjun Kodagali (supra), the Hon'ble Supreme Court has held and observed thus:-
"The presumption of innocent which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as a matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of along drawn out criminal trial are not again unnecessarily dragged to the High Court"
17. The relevant paragraph of the decision of the Hon'ble Supreme Court in the case of Chandrappa (supra), reads as Page 27 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined under:-
"The following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;
(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to 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 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."
18. We have perused the judgment and order of acquittal rendered by the learned Additional Sessions Judge, Nadiad and Page 28 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined carefully considered the rival contentions, evidence and material placed on record.
19. The law on the appreciation of circumstantial evidence is also well settled. The circumstances concerned 'must or should be' established and not 'may be' established, as held in Shivaji Sahabrao Bobade and another Vs. State of Maharashtra reported in (1973) 2 SCC 793. The accused 'must be' and not merely 'may be' guilty before a court can convict him. The conclusions of guilt arrived at must be sure conclusions and must not be based on vague conjectures.
20. It would be worthwhile to refer to the decision of the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 166 wherein the Hon'ble Supreme Court has held and observed in paragraphs No.151, 153 and 165 as under:-
"151. t is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be Page 29 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court.
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade V/s. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made : [SCC para 19, p. 807 : SCC (Cri.) p. 1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
165. So far as this matter is concerned, in such cases the Court must carefully scan the evidence and determine the four important circumstances which alone can justify a Page 30 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined conviction :
(1) there is a clear motive for an accused to administer poison to the deceased.
(2) that the deceased died of poison said to have been administered.
(3) that the accused had the poison in his possession.
(4) that he had an opportunity to administer the poison to the deceased.
21. The law regarding appreciation of circumstantial evidence has been very well settled by the Supreme Court. In the case of Padala Veera Reddy Vs. State of Andhra Pradesh and others reported in 1989 Suppl. 2 SCC 706 wherein the Supreme Court has observed as under:-
"10. x x x x (1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.Page 31 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023
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22. It is worthwhile to refer to the decision of the Hon'ble Apex Court in the case of Vikramjit Singh alias Vicky Vs. State of Punjab reported in (2006) 12 SCC 306 wherein the Hon'ble Supreme Court has held and observed in paragraphs No.15, 16, 18, 21, 22, 23, 25, 26, 27 as under:-
"15. It may be that in a situation of this nature where the court legitimately may raise a strong suspicion that in all probabilities the accused was guilty of commission of heinous offence but applying the well-settled principle of law that suspicion, however, grave may be, cannot be a substitute for proof, the same would lead to the only conclusion herein that the prosecution has not been able to prove its case beyond all reasonable doubt.
16. In Sharad Birdhichand Sarda V/s. State of Maharashtra, AIR 1984 SC 1622, this Court laid down the law in the following terms :
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established.
There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade V/s. State of Maharashtra where the observations were made: [SCC para 19, p.807 : SCC (Cri.) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." Page 32 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023
NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
(emphasis in original) It was further observed : (SCC pp. 194-95, paras 179-80) "179. We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any court yet suspicion, however great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law.
180. It must be recalled that the well established rule of criminal justice is that "fouler the crime higher the proof". In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a very careful, cautious and meticulous approach was necessary to be made."
18. Why an information was given only that an accident had taken place which was in fact a robbery is again a matter which does not point out to the guilt of the appellant. Information was given by somebody to a Press Reporter. He might not have wanted to disclose that the deceased has expired or her husband was lying injured at that point of time. It is a natural course of conduct. The conduct of a third person in any event is wholly irrelevant unless the same has a direct nexus in proving the crime.
21. The reaction of the family is again a matter which is not of much consequence to prove the guilt of the Page 33 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined appellant. It does not lead to a circumstance which forms the link in the chain. Again, no such question was put to the appellant in his examination under Section 313 of the Code of Criminal Procedure. The nature of injuries on the person of the appellant, in our opinion, even does not form a circumstantial evidence which would prove the prosecution case. The doctor opined that injuries Nos. 1,4,5 and 6 could be caused by friendly hand but he has not stated so about the other injuries. The courts below did not consider the effect thereof.
22. Furthermore, as noticed hereinbefore, the prosecution witnesses have turned hostile. It may be an act of dishonesty on their part as contended by Mrs. Kochar but by reason thereof only we cannot hold the appellant guilt of commission of a heinous offence. In view of their statements in the cross- examination giving a complete go bye to what had been stated in the examination-in-chief, it is not possible to rely even upon a part of their statement.
23. It is now a well-settled principle of law that the circumstances which according to the prosecution lead to proof of the guilt against the accused must be put to him in his examination under Section 313 of the Code of Criminal Procedure. It was not done.
25. A knife was recovered purported to be pursuant to a confession made by the appellant. The statement was admissible in evidence but the knife was recovered from the place of incident without something more which would lead to a discovery of fact, it, therefore, may not have much evidentiary value.
26. Furthermore, recovery of a knife alone is not sufficient to arrive at a finding of guilt. Some jewellery might have been recovered from the accused No. 2 but such recovery was not made at the instance of the appellant. It was said to be a chance recovery. There is nothing on record to show that accused No. 2 was known to the appellant. PW-8 Amarjit Singh who has proved recoveries stated that Arvind Sharma ran away after leaving his scooter. Yet again PW-4 in her cross- examination denied that the deceased was having the said jewellery on her person.
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27. We have noticed hereinbefore that both the learned Sessions Judge as also the High Court proceeded to compare the probabilities of two views. It is now beyond any cavil that where two views of a story appear to be probable, the one that was contended by the accused should be accepted. (See K. Gopal Reddy v. State of A.P., (1979) 1 SCC 355, Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, Tota Singh v. State of Punjab, (1987) 2 SCC 529, Divakar Neelkantha Hegde v. State of Karnataka, (1996) 10 SCC 236, State of Orissa v. Babaji Charan Mohanty, (2003) 10 SCC 57 and Hem Raj v. State of Haryana, (2005) 10 SCC 614.)
23. It is also worthwhile to refer to the decision of the Hon'ble Supreme Court in the case of Majenderan Langeswaran Vs. State (NCT of Delhi) and another reported in (2013) 7 SCC 192, wherein the Hon'ble Supreme Court has held and observed in paragraphs No.3, 7, 16 to 26 as under:-
"3. On 30th November, 1996, an altercation is stated to have taken place between the accused and the deceased L. Shivaraman. As the accused had sustained some cut injuries on his hands, he reported the matter to the officials. On 1st December, 1996 when the ship was on high seas, the appellant took off from his duty as helmsman on the ground of pain in his hands due to cut injuries and another helmsman Baria was asked to do the duty as replacement. As the accused and the deceased were staying in Cabin No. 25, the accused was temporarily shifted from that cabin to Cabin No. 23 due to the above incident of assault. At about 1510 hours, the accused allegedly approached IInd Officer Kalyan Singh (PW-6) with a blood- stained knife in his hand and his hands smearing in blood and is alleged to have confessed before him that he had killed L. Shivaraman. On being asked by Kalyan Singh (PW-6), the appellant handed over the blood-stained knife to him which he placed in a cloth piece without Page 35 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined touching the same. Kalyan Singh (PW-6) then intimated the Captain and other officers. The body of L. Shivaraman was found lying in Cabin No. 23 in such a way that half of it was inside the cabin and half of it outside. The officials of Shipping Corporation of India were informed. On incident being reported, pursuant to an instruction from concerned quarter, the ship was diverted to Hongkong. On being so directed by the Captain of the ship (PW-5), Kalyan Singh (PW-6) got the body of the deceased cleaned up for being preserved in the fish room with the help of Manjeet Singh Bhupal (PW-4) and Chief Officer V.V. Muralidharan (PW-18) took photographs. The blood-stained knife was kept in the safe custody of PW-5. The accused was then apprehended, tied and disarmed before being shifted to the hospital on board. Since the ship was having Indian Flag, as per the International Treaty of which India was a signatory, the act of the accused was subject to Indian laws. Accordingly, a case bearing R.C. No. 10(S) of 1996 was registered by the Central Bureau of Investigation (CBI) against the accused on 6th December, 1996.
7. As regards alleged extra-judicial confession, the depositions of Captain Radha Krishan Ambady (PW-5) and Kalyan Singh (PW-6) were referred to and variance in words allegedly used by the appellant while making the same was demonstrated; absence of any mention of such a confession in the Official Log Book was also pleaded; and it was contended that the I.O. did not detect any blood in Cabin No. 23 as the scene of crime had also been cleaned and on account of such tampering the crime could not be connected with the appellant. It was contended that it was on account of officers on board including Captain of the ship being unhappy with and inimical towards the appellant that he was falsely implicated. It was contended that the previous day incident of assault could not be reckoned as motive for fatal assault on the deceased on the following day and such motive alone in the absence of necessary links in the circumstantial evidence would not be suffice to record conviction against the appellant.
16. Now, we have to consider whether the judgment of conviction passed by the trial court and affirmed by the High court can be sustained in law. As noticed above, the conviction is based on circumstantial evidence as no one has seen the accused committing murder of the deceased. While dealing with the said conviction based on circumstantial evidence, the circumstances from which the Page 36 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined conclusion of the guilt is to be drawn should in the first instance be fully established, and all the facts so established should also be consistent with only one hypothesis i.e. the guilt of the accused, which would mean that the onus lies on the prosecution to prove that the chain of event is complete and not to leave any doubt in the mind of the Court.
17. In the case of Hanumant Govind Nargundkar V/s. State of M.P., AIR 1952 SC 343, this Court observed as under: (AIR pp. 345-46, para 10) "10. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. "
18. In the case of Padala Veera Reddy V/s. State of A.P., 1989 Supp (2) SCC 706, this Court opined as under: (SCC pp.710-11, para-10) "10....Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;Page 37 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023
NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra, (1982) 2 SCC 351)"
19. In the case of C. Chenga Reddy & Ors. V/s. State of A.P., (1996) 10 SCC 193, this Court while considering a case of conviction based on the circumstantial evidence, held as under: (SCC pp.206-07, para 21) "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence."
20. In the case of Ramreddy Rajesh Khanna Reddy V/s. State of A.P., (2006) 10 SCC 172, this Court again considered the case of conviction based on circumstantial evidence and held as under: (SCC p. 181, para 26) "26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. Page 38 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023
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603)."
21. In the case of Sattatiya V/s. State of Maharashtra, (2008) 3 SCC 210, this Court held as under:
"10. We have thoughtfully considered the entire matter. It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances."
This Court further observed in the aforesaid decision that:
(Sattatiya case, SCC p.217, para 7) "17. At this stage, we also deem it proper to observe that in exercise of power under Article 136 of the Constitution, this Court will be extremely loath to upset the judgment of conviction which is confirmed in appeal. However, if it is found that the appreciation of evidence in a case, which is entirely based on circumstantial evidence, is vitiated by serious errors and on that account miscarriage of justice has been occasioned, then the Court will certainly interfere even with the concurrent findings recorded by the trial court and the High Court-Bharat v. State of M.P., (2003) 3 SCC 106. In the light of the above, we shall now consider whether in the present case the prosecution succeeded in establishing the chain of circumstances leading to an inescapable conclusion that the appellant had committed the crime."
22. In the case of State of Goa V/s. Pandurang Mohite, (2008) 16 SCC 714, this Court reiterated the settled law that where a conviction rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to Page 39 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined be closely connected with the principal fact sought to be inferred from those circumstances.
23. It would be appropriate to consider some of the recent decisions of this Court in cases where conviction was based on the circumstantial evidence. In the case of G. Parshwanath V/s. State of Karnataka, (2010) 8 SCC 593, this Court elaborately dealt with the subject and held as under: (SCC pp.602-603, paras 23-24) "23. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.
24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and Page 40 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court."
24. In the case of Rajendra Pralhadrao Wasnik V/s. State of Maharashtra, (2012) 4 SCC 37, while dealing with the case based on circumstantial evidence, this Court observed as under: (SCC pp. 41-42, paras 12-13) "12. There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete as not to leave any substantial doubt in the mind of the court. Irresistibly, the evidence should lead to the conclusion which is inconsistent with the innocence of the accused and the only possibility is that the accused has committed the crime.
13. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person."
25. Last but not least, in the case of Brajendrasingh V/s. State of M.P., (2012) 4 SCC 289, this Court while reiterating the above principles further added that: (SCC pp.299-300, para 28) "28. Furthermore, the rule which needs to be observed by the court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which Page 41 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined the nature of the case admits. The circumstances have to be examined cumulatively. The court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial. (Ref. Dhananjoy Chatterjee v. State of W.B., (1994) 2 SCC 220; Shivu v. High Court of Karnataka, (2007) 4 SCC 713 and Shivaji v. State of Maharashtra, (2008) 15 SCC 269)"
26. As discussed hereinabove, there is no dispute with regard to the legal proposition that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence as laid down by this Court. In such a case, all circumstances must lead to the conclusion that the accused is the only one who has committed the crime and none else.
24. In the case of Ram Pratap vs. The State of Haryana reported in 2022 LiveLaw (SC) 1025, the Hon'ble Supreme Court has held and observed in paragraphs No.8 and 9 as under:-
"8. Undisputedly, the present case is a case based on circumstantial evidence.
9. It has been held by this Court in a catena of cases including Sharad Birdhichand Sarda v. State of Maharashtra reported at (1984) 4 SCC 116, that suspicion, howsoever strong, cannot substitute proof beyond reasonable doubt. This Court has held that there is not only a grammatical but also a legal distinction between 'may' and 'must'. For proving a case based on circumstantial evidence, it is necessary for the prosecution to establish each and every circumstance beyond reasonable doubt, and further, that the circumstances so proved must form a Page 42 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined complete chain of evidence so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show, in all human probability, that the act has been done by the accused. Further, it has been held that the facts so established must exclude every hypothesis except the guilt of the accused."
25. It is well settled principles laid down by the Hon'ble Supreme Court in the case of Majenderan Langeswaran (supra) that onus lies on prosecution to prove that chain of event is complete and not to leave any doubt in the mind of court. The conviction can be based solely on circumstantial evidence but it should be tested on touchstone of law relating to circumstantial evidence as laid down by the Supreme Court. In such a case, all circumstances must lead to the conclusion that accused is the only one who has committed crime and none else and since the same was not true in the present case, appellant acquitted.
26. In criminal trial, circumstantial evidence, motive, relevance, sufficient motive to commit murder, if present, then a day before incident an altercation was alleged to have taken place between accused and deceased which was alleged to be source of motive for murder. The evidence of prosecution was found full of inconsistencies and infirmities. The contentions of Page 43 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined the respondents that said altercation could not be reckoned as affording a sufficient motive for fatal assault on deceased on the following day; and that in any case such motive alone in the absence of necessary links in circumstantial evidence would not suffice to record conviction against the appellant except under Section 302 of the Indian Penal Code.
27. Regarding scope of power of the appellate court in an appeal against the order of acquittal, it has been observed by the Apex Court in the case of Motiram Pandu Joshi and others Vs. State of Maharashtra, reported in (2018) 9 SCC 429 especially in paragraph nos.22 to 24 as under:-
22. It is fairly well-settled that in an appeal against the order of acquittal, the appellate court would be slow to disturb the findings of the trial court which had the opportunity of seeing and hearing the witnesses. In an appeal against the order of acquittal, there is no embargo for reappreciating the evidence and to take a different view; but there must be strong circumstances to reverse the order of acquittal. In the appeal against the order of acquittal, the paramount consideration of the appellate court should be to avoid miscarriage of justice.
23. While considering the scope of power of the appellate court in an appeal against the order of acquittal, after referring to various judgments, in Chandrappa v. State of Karnataka, [10 (2007) 4 SCC 415] this Court summarised the principle as under: (SCC p. 432, para-42).
"42. From the above decisions, in our considered view, the Page 44 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined 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 re-consider 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."
24. In Kallu v. State of M.P. [(2006) 10 SCC 313], this Court held as under: (SCC pp.317-18, para-8) "8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of Page 45 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further, if it decides to interfere, it should assign reasons for differing with the decision of the trial court."
28. While appreciating the evidence and exercising the power under Section 378 of the Criminal Procedure Code, the duty cast upon the High Court regarding the scope and ambit of interference in acquittal appeal by the Hon'ble Supreme Court. It is worthwhile to refer to the decision of the Hon'ble Supreme Court in the case of Nagabhushan Vs. State of Karnataka reported in (2021) 5 SCC 222. The relevant paragraphs of the said decision in the case of Nagabhushan (supra) reads as under:-
"7.2 Before considering the appeal on merits, the law on the appeal against acquittal and the scope and ambit of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal is required to be considered.
7.2.1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189, this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under: (SCC Page 46 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined pp. 196-99) "12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject- matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v.
State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445)"
13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."
14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR Page 47 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755)
15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42) "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to 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 Page 48 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.
17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."
18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;
(ii) The High Court's conclusions are contrary to evidence and documents on record;
(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;
(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the Page 49 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined record of the case;
(v) This Court must always give proper weight and consideration to the findings of the High Court;
(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal." A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.
19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
7.3 In the case of Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436, this Court again had an occasion to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under:
"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on re- appreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p.
233) Page 50 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined "10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case."
31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on re- appreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416) "8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non- compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the Page 51 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case."
31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.
31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under: (AIR pp. 809-10) Page 52 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined "5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 CrPC came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order. It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.
31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule." Page 53 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023
NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined
29. It is also worthwhile to refer to the decision of the Hon'ble Supreme Court in the case of Rajesh Prasad Vs. State of Bihar and another reported in (2022) 3 SCC 471. The Hon'ble Supreme Court in the said decisions has held and observed in paragraphs No.21 to 30 as under:-
"21. Before proceeding further, it would be useful to review the approach to be adopted while deciding an appeal against acquittal by the trial court as well as by the High Court. Section 378 of the Cr.P.C deals with appeals in case of acquittal. In one of the earliest cases on the powers of the High Court in dealing with an appeal against an order of acquittal the Judicial Committee of the Privy Council in Sheo Swarup vs. R. Emperor, AIR 1934 PC 227(2) considered the provisions relating to the power of an appellate court in dealing with an appeal against an order of acquittal and observed as under: (SCC OnLine PC) "16. It cannot, however, be forgotten that in case of acquittal, there is a 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 should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court.
"...But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. To state this, however, is only to say Page 54 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice."
It was stated that the appellate court has full powers to review and to reverse the acquittal.
22. In Atley vs. State of U.P., AIR 1955 SC 807, the approach of the appellate court while considering a judgment of acquittal was discussed and it was observed that unless the appellate court comes to the conclusion that the judgment of the acquittal was perverse, it could not set aside the same. To a similar effect are the following observations of this Court speaking through Subba Rao J., (as His Lordship then was) in Sanwat Singh vs. State of Rajasthan, AIR 1961 SC 715 (Sanwat Singh case, AIR pp 719-20 para 9):
"9. The foregoing discussion yields the following results:
(1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case afford a correct guide for the appellate court's approach to a case disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) 'substantial and compelling reasons', (ii) 'good and sufficiently cogent reasons', and (iii) 'strong reasons' are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified."
The need for the aforesaid observations arose on account of observations of the majority in Aher Raja Khimavs. State of Saurashtra, AIR 1956 SC 217 which stated that for the High Court to take a different view on the evidence "there must also be substantial and compelling reasons for holding that the trial court was wrong."
23. M.G. Agarwal vs. State of Maharashtra, AIR 1963 SC 200 is the judgment of the Constitution Bench of this Court, speaking through Gajendragadkar, J. (as His Lordship then was). This Court observed that the approach of the High Page 55 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined Court (appellate court) in dealing with an appeal against acquittal ought to be cautious because the presumption of innocence in favour of the accused "is not certainly weakened by the fact that he has been acquitted at his trial."
24. In Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793, Krishna Iyer, J., observed as follows:
(SCC p.799, para 6) "6......In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."
25. This Court in Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225, spoke about the approach of the appellate court while considering an appeal against an order acquitting the accused and stated as follows: (SCC p.229, para 7) "7.....While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only- reappraise the evidence to arrive at its own conclusions." The object and the purpose of the aforesaid approach is to ensure that there is no miscarriage of justice. In another words, there should not be an acquittal of the guilty or a conviction of an innocent person.
26. In Ajit Savant Majagvai vs. State of Karnataka, (1997) 7 SCC 110, this Court set out the following principles that would regulate and govern the hearing of an appeal by the High Court against an order of acquittal passed by the Trial Court: (SCC pp. 116-17, para 16) "16. This Court has thus explicitly and clearly laid down the principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal Page 56 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined passed by the trial court. These principles have been set out in innumerable cases and may be reiterated as under:
(1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction.
(2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse.
(3) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial court that the accused is entitled to acquittal.
(4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court.
(5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.
(6) The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness box.
(7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused."
27. This Court in Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225 observed vis--vis the powers of an appellate court while dealing with a judgment of acquittal, as under: (SCC p.229, para 7)) Page 57 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined "7.... While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only- reappraise the evidence to arrive at its own conclusions."
28. This Court in Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC 415, highlighted that there is one significant difference in exercising power while hearing an appeal against acquittal by the appellate court. The appellate court would not interfere where the judgment impugned is based on evidence and the view taken was reasonable and plausible. This is because the appellate court will determine the fact that there is presumption in favour of the accused and the accused is entitled to get the benefit of doubt but if it decides to interfere it should assign reasons for differing with the decision of acquittal.
30. In Nepal Singh vs. State of Haryana- (2009) 12 SCC 351, this Court reversed the judgment of the High Court which had set aside the judgment of acquittal pronounced by the trial court and restored the judgment of the trial court acquitting the accused on reappreciation of the evidence.
30. It is well settled by catena of decisions that the an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court 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 Page 58 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined 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.
31. Further, 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. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on Page 59 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined record. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged.
32. From the prosecution side, a number of witnesses have been examined to complete the chain of events and to prove the version given in the FIR and subsequent thereto. We have re- appreciated and analyzed the evidence brought on record from the prosecution side. On the analysis of the evidence, we have found many inconsistencies and infirmities in the prosecution version as mentioned hereinafter.
(i) The Trial Court has rightly passed the impugned judgment and order of acquittal as the chain of circumstances is not completed and not established by the prosecution beyond reasonable doubt.
(ii) In the present case, the prosecution miserably failed to Page 60 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined establish mode, of course the prosecution tried to say that there was dispute between the husband and wife and at the intervention of some social leader, the dispute came to be resolved between the husband and wife. But, this circumstance does not lead to prove the guilt of the respondents.
(iii) Learned Additional Public Prosecutor has tried to point out another circumstance which is in terms of extra-judicial confession during the custody of the police by the present respondents whereby they have disclosed that accused no.1 killed his wife with the help of accused no.2. This is also not taken into consideration while evaluating the evidence of P.W.3 as there is discrepancy in the evidence with regard to the recovery of the weapon which is used in the commission of crime and the ornaments recovered from the possession of the accused persons.
(iv) It is also required to be noted that at the first instance, accused No.1 was present before the Limdi Police Station where the fact of the cognizable offence was disclosed. But surprisingly, Page 61 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined the concerned Police Officer has not reduced in writing and registered or record the First Information Report with regard to the murder of the deceased Kalpnaben and, thereafter, this discrepancy is in furtherance of fact led by the Investigating Officer, who has not properly investigated the crime of murder of the deceased which is serious in nature. It is admitted fact that the concerned Police Officer has not even bothered to collect the blood sample of the deceased as well as accused persons.
(v) The investigation which was carried out by the Sojitra Police Station is in perfunctory / causal manner as on account of the murder of the deceased, the concerned Police Officer has not taken proper care to investigate the offence. Even the Investigating Officer of Sojitra Police Station has committed serious lapses in the investigation and, therefore, the Trial Court has rightly come to the conclusion that the prosecution has miserably failed to establish the chain of circumstances while proving the guilt of the accused from the charges levelled against the accused. The Trial Court has rightly acquitted the accused persons from the charges levelled against them of Page 62 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined murder of the wife of accused No.1 and sister-in-law of accused No.2. It appears that in paragraph No.29 onward of the impugned judgment and order, the Trial Court has described all the circumstances.
(vi) After going through the evidence recorded by the Trial Court i.e. evidence of P.W.1 to P.W.19 and other documentary evidence which are on record we are of the complete agreement with the reasoning and finding recorded by the Trial Court while passing the impugned judgment and order of acquittal and hence, the order of acquittal is justifiable.
(vii) The case of the prosecution itself creates doubt with regard to the evidence and the expert evidence. It appears from the evidence of P.W.1 Dr. Dilipkumar Bhakkabhai examined at Exhibit 9, who opined that the death of the deceased occurred prior to 15.06.1994 before about 6.00 p.m. and on the other hand, some of the witnesses have stated that after 16.06.1994, whereabouts of the deceased was not known. Even the prosecution has also not sure that on which date the deceased Page 63 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined was killed and thrown at the place of occurrence where the dead body was found. This vital aspect was overlooked at the time of investigation and the Investigating Officer has not investigated at all in proper manner.
(viii) It also appears that when the two officers of the rank of Sub Inspector have not carried out proper investigation upto the mark of the murder and in absolutely lethargy manner, the investigation was carried out. There are serious lapses in the investigation and, therefore, the chain of circumstances is not complete and even not proved by the prosecution beyond reasonable doubt. We are in complete agreement with the impugned judgment and order of acquittal, which is just and proper and, therefore, no interference is required to be called out.
(ix) The main discrepancy in the prosecution case is that though the cognizable offence was disclosed before the Limdi Police Station at the early hours of 17.06.1994, the concerned Police Inspector of Limdi Police Station has not registered Page 64 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined cognizable offence of murder and the concerned Investigating Officer stated that he did not want to explain circumstances as to why he had not registered the complaint. The Investigating Officer went to the Sojitra Police Station along with the complainant and accused No.1 has chosen to leave Sojitra without intimating to the Police Sub Inspector, Sojitra Police Station. Even the deadbody was found between 8.00 a.m. to 8.30. a.m., however, the FIR came to be lodged at 11.00 a.m. by the complainant and there was no any explanation rendered by the concerned Investigating Officer in his evidence that why the complaint was lodged at belated stage. All these circumstances create serious doubt about the case of the prosecution and thereby no chain is complete of circumstances which lead to prove the guilt of the respondents.
(x) On perusing the impugned judgment and order, it appears that the trial Court has observed that there were no any eye witnesses of the scene of offence and the prosecution case only dependents upon the circumstantial evidence and, therefore, the prosecution has to prove it's case beyond reasonable doubt. Page 65 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023
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33. In view of the aforesaid settled legal position and on perusal of the evidence on record, it transpires that the entire case of the prosecution is based on the circumstantial evidence.
34. On perusal of the impugned judgment and order, it clearly transpires that the learned trial Judge has not committed any error of fact and law in appreciating the evidence on record and in acquitting the accused from the charges levelled against him. Even on re-appreciation of the evidence, it clearly transpires that the prosecution has miserably failed to prove the charge levelled against the accused beyond reasonable doubt. Therefore, the impugned judgment and order of the trial Court is sustainable and the present appeal is liable to be dismissed.
35. In view of the evidence on record, it is clearly found that the trial Court has minutely examined the evidence and has properly appreciated the evidence on record and also not Page 66 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023 NEUTRAL CITATION R/CR.A/532/1996 JUDGMENT DATED: 20/01/2023 undefined committed any error of fact and law in acquitting the accused for the charges levelled against them.
36. In view of the above, the present appeal fails and stands dismissed accordingly. The judgment and order of acquittal dated 14.03.1996 passed by the learned Additional Sessions Judge, Nadiad in Sessions Case No. 224 of 1994 is hereby confirmed. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
(VIPUL M. PANCHOLI, J) (HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 67 of 67 Downloaded on : Sun Sep 17 21:00:26 IST 2023