Gujarat High Court
State Of Gujarat vs Govindbhai Lakhabhai Pagi on 13 May, 2025
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
R/CR.A/326/1998 JUDGMENT DATED: 13/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 326 of 1998
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
and
HONOURABLE MR.JUSTICE R. T. VACHHANI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
GOVINDBHAI LAKHABHAI PAGI
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Appearance:
MS. SHRUTI PATHAK, APP for the Appellant(s) No. 1
MR UM SHASTRI(830) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
and
HONOURABLE MR.JUSTICE R. T. VACHHANI
Date : 13/05/2025
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE R. T. VACHHANI)
1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 03.01.1998 passed by the learned Sessions Judge, Panchmahals at Godhra in Sessions Case No.119 of 1997, whereby the respondent - original accused accused No.2 came to be acquitted for the offences under section 302 of Indian Penal Code read with Section 34 of the Indian Penal Code. The appellant - State has preferred present appeal Page 1 of 20 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Jun 03 2025 Downloaded on : Fri Jun 06 21:59:21 IST 2025 NEUTRAL CITATION R/CR.A/326/1998 JUDGMENT DATED: 13/05/2025 undefined under section 378 of the Code of Criminal Procedure, 1973 ("the Code"
for short).
2. The brief facts leading to the filing of the present appeal are as under:
2.1 The deceased, Shanabhai Fulabhai Pagi, was the husband of Accused No. 1, Madhuben. It is alleged that Accused No. 1, Madhuben, was engaged in an extramarital relationship with Accused No. 2, Govindbhai Lakhabhai Pagi. Upon the deceased, Shanabhai Fulabhai Pagi, becoming aware of this illicit relationship, both accused formed a common intention to cause his death. In furtherance of their common intention to bring about the death of Shanabhai Fulabhai Pagi, Accused No. 2, Govindbhai Lakhabhai Pagi, procured a poisonous substance. On the evening of 29.04.1997, at approximately 9:15 PM, Accused No. 1, Madhuben, administered the said poisonous substance by mixing it in tea / food, which was consumed by the deceased. Immediately after consuming the poisoned tea / food, Shanabhai Fulabhai Pagi succumbed to the effects of the poison and died. The prosecution alleges that both Accused No. 1 and Accused No. 2, acting in connivance with a common intention, caused the death of Shanabhai Fulabhai Pagi by administering poison, thereby committing an offense punishable under Section 302 (Punishment for Murder) read with Section 34 (Acts done by several persons in furtherance of common intention) of the Indian Penal Code.
3. In pursuance of the complaint lodged by the complainant with the Konthba police station for the offence under Section 302 of the Indian Page 2 of 20 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Jun 03 2025 Downloaded on : Fri Jun 06 21:59:21 IST 2025 NEUTRAL CITATION R/CR.A/326/1998 JUDGMENT DATED: 13/05/2025 undefined Penal Code read with Section 34 of the Indian Penal Code. The investigating agency while carrying out investigation recorded statements of the witnesses, drawn panchnama of scene of offence, discovery and recovery of weapons and obtained FSL report for the purpose of proving the offence. After having found sufficient material against the respondent accused, charge-sheet came to be filed in the Court of learned Judicial Magistrate First Class, Lunawada, District:
Panchmahals. As said Court lacks jurisdiction to try the offence, it committed the case to the learned Sessions Court, Panchmahals at Godhra, as provided under section 209 of the Code.
4. Upon committal of the case to the Sessions Court, Panchmahals at Godhra, learned Sessions Judge framed charge at Ex.2 against the respondent accused for the aforesaid offences. The respondent accused pleaded not guilty and claimed to be tried. During the course of trial, the prosecution has examined in all 10 witnesses. The details of the aforesaid evidence led by the prosecution is reproduced in the tabular form as under:-
~:: Oral Evidence ::~ Sr. no. Particular Exh.
1. Fulabhai Dhulabhai - Complainant PW-1 7 2. Jatendra Shanabhai (Child Witness) - PW-2 9 3. Ramanbhai Kodarbhai - PW-3 10 4. Udaykumar Balchandra Dave - PW-4 12 5. Dr. A.K. Daswani - PW-5 13 6. Vaja Fula - PW-6 17 Page 3 of 20 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Jun 03 2025 Downloaded on : Fri Jun 06 21:59:21 IST 2025 NEUTRAL CITATION R/CR.A/326/1998 JUDGMENT DATED: 13/05/2025 undefined 7. Hirsinh Somsinh - PW-7 20 8. Khatubhai Punabhai - PW-8 22 9. Shantilal Shamanbhai - PW-9 23 10. Lakhabhai Kalubhai - PW-10 25 11. Balvantsinh Manabhai Patel - PW-11 26 ~:: Documentary Evidence ::~ Sr. no. Particular Exh. 1. Complaint 8 2. Stamp Paper's Writing & Receipt 11 3. Panchanama of place of incident 18 4. Certificate of Cause of death 14 5. P.M. Notes 15 6. FSL report 30
5. In order to bring home charge, the prosecution has examined 11 witnesses in para 8 of the impugned judgment and also produced various documentary evidence in para 9 of the impugned judgment before the learned trial Court.
6. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondent accused so as to obtain explanation/answer as provided u/s 313 of the Code. In the further statement, the respondent accused denied all incriminating circumstances appearing against him as false and further stated that he is innocent and false case has been filed against them.Page 4 of 20 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Jun 03 2025 Downloaded on : Fri Jun 06 21:59:21 IST 2025
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7. We have heard Ms. Shruti Pathak, learned APP for the appellant - State and minutely examined oral and documentary evidence adduced before the learned Trial Court.
8. Ms. Shruti Pathak, learned APP appearing for the appellant submitted that the appellant being aggrieved by the order acquitting the respondent herein i.e., original accused No.2 to the said proceedings. Ms. Shruti Pathak, learned APP has placed reliance on the confession made on the stamp paper by the accused having signed the same which shows the involvement of the respondent accused herein. It is submitted that it is not in dispute that the original accused No.1 Madhuben and the respondent herein accused No.2 Govindbhai Lakhabhai Pagi were in illicit relationship which is also confessed. Ms. Shruti Pathak learned APP has also relied upon the documents and the evidences placed on record. Learned APP also submitted that the prayers as prayed for in the present appeal be allowed and the impugned order passed by the competent court be quashed and set aside.
9. Having heard Ms. Shruti Pathak, learned APP it emerges that the alleged incident occurred on 24.04.1997 and the complaint below Ex.8 came to be filed by the father of the deceased Shanabhai on 21.05.1997 which is produced on record. On the basis of stamp paper as mentioned in preceding paragraph, necessary confessional statement of witness has been recorded which culminated into confessional statement of the accused. Hence, the present appeal.
10. In view of aforesaid scope and ambit of section 378 of Cr.P.C.
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pertaining to appeal as well as acquittal requires to have glance and accordingly this Court while exercising power under section 378 of Cr.P.C. against judgment of acquittal has to consider the provisions in its true spirit and also cardinal principles of criminal jurisprudence is that once there is presumption of innocence in favour of the accused unless proved guilty, it continues at all stage of trial and finally culminates into fact when case ends in acquittal. Thus, presumption of innocence gets concretized when the case ends in acquittal.
11. Even the Court while re-appreciating the entire evidence at appellate stage is not permissible to take different view, unless and until grave error has been identified in the conclusion arrived at by the learned Competent Court. As such there are plethora of decisions on the issue of power to exercise, as enshrined under section 378 of Cr.P.C., while deciding the appeal from acquittal, which otherwise can be summarized as under :-
(I) Appreciation of evidence is core element of criminal trial and such appreciation must be comprehensive inclusive of all evidence, oral as well as documentary evidence because partial or selective appreciation of evidence result in miscarriage of justice, which otherwise give rise and ground to challenge, more so when Court concerned after appreciation of evidence finds that when two views are possible, one in favour of the accused not only be followed but may prevail, as mere possibility of contrary view would not justify reversal of acquittal.Page 6 of 20 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Jun 03 2025 Downloaded on : Fri Jun 06 21:59:21 IST 2025
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12. We have gone through the record and considered the deposition of the witnesses and perused the impugned order passed by the competent court and it emerges that the accused No.1 Madhuben is convicted of charges under Section 302 and Section 35 of the Indian Penal Code. The respondent herein - original accused has been acquitted from the charges. In view thereof, we are required to decide whether any interference is warranted in the impugned order while acquitting the respondent herein to arrive at a final conclusion, it deems fit to reproduce paragraph nos. 21 and 36 to 39 of the impugned order, wherein, the competent court has discussed the reasons in detail with respect to acquittal qua the respondent No.2 herein. Para nos. 21 and 36 to 39 of the impugned judgment reads thus:
"(21) It has been unequivocally established that on 29-04-1997, Shanabhai passed away at his residence at around 9:00 p.m. The question that remains is how this death occurred. As discussed above, there may be several causes of death, including natural death, death due to pressure or stress, accidental death, and death caused by another individual. If the death is not of the fourth category, it can be said to be a culpable homicide. In the present case, the testimony of Dr. A.K. Daswani and the report from the Forensic Science Laboratory hold significant importance. Dr. Daswani, in his testimony, stated that on 22-05-1997, he was serving as a Medical Officer at the Undera Primary Health Centre. On that day, at 11:15 a.m., he, along with Dr. S.M. Gosai of Varghari, had gone to the cemetery of village Uchharpi. The list for the said visit had been received by him on the same day in the Page 7 of 20 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Jun 03 2025 Downloaded on : Fri Jun 06 21:59:21 IST 2025 NEUTRAL CITATION R/CR.A/326/1998 JUDGMENT DATED: 13/05/2025 undefined morning at around 9:00 a.m. At the cemetery, PSI Patel, the Mamlatdar, and others were present, and in their presence, the dead body was exhumed from the grave. The post-mortem examination was commenced by both doctors at 11:30 a.m. and was completed by 3:30 p.m. Until the said post-mortem examination is concerned, no objection was raised against the testimony of Dr. Daswani. Under these circumstances, it stands clearly established that on 22-05-1997, the dead body of Shanabhai was exhumed from a grave located in the cemetery of village Uchharpi, and a post-mortem examination was conducted at that very place."
"(36) The prosecution has relied upon the extra-judicial confession. It is the case of the prosecution that such extra-judicial confession is both oral and written. On13-5-1997, the complainant had gathered the villagers, and after all had arrived, the family members of Govindbhai Lakhabhai were also summoned, and the accused Govindbhai had told Nanabhai and two or three other villagers to go and inquire from them, and hence they do not believe Govindbhai. Thereafter, even on the second occasion when they went to inquire, they again returned and said that Govindbhai was not agreeing. Thereafter, on the third occasion when they were again sent to Govindbhai, they returned and said that Govindbhai had confessed. They stated that Govindbhai had intended to flee with Madhuben and that both had poisoned Shanabhai to death. Among the villagers, Ramanbhai Kodarbhai also went to inquire, as stated in the evidence of witness Fulabhai.
Said Ramanbhai Kodarbhai has been examined at Ex.10, and in Page 8 of 20 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Jun 03 2025 Downloaded on : Fri Jun 06 21:59:21 IST 2025 NEUTRAL CITATION R/CR.A/326/1998 JUDGMENT DATED: 13/05/2025 undefined his deposition, he stated that he and two or three other persons had gone to Govindbhai's house to inquire and at that time he said that he knew nothing about it. Then they returned to the panchayat and again went to Govindbhai on the instruction of the panchayat. At that time, Govindbhai said that he had an illicit relationship with Madhu, which was known to all, but he had no role in bringing poison, and earlier once Madhuben had said to him that they should kill her husband Shanabhai and elope, but he had refused to do so. Hence, this witness and others told the panchayat accordingly. Thereafter, the panchayat made a writing on stamp paper. Said stamp paper has been produced at Ex. 11, in which according to the prosecution, both accused had signed, and according to the prosecution, both the accused had signed it, out of which the second accused signed it the next morning at his own village.
(37) Thus, the extra-judicial confession relied upon by the prosecution is both oral and written. So far as extra-judicial confession is concerned, it is necessary to consider it under Section 24 of the Indian Evidence Act. Learned Advocate Shri Pathak, in order to show that no reliance can be placed upon such type of extra-judicial confession made by the accused, has relied upon Ankhaya and others v. State of Karnataka, 1978 Criminal Law Journal, page number 462. After examining the facts of that case, the Hon'ble High Court has expressed the opinion that extra- judicial confession must be proved through reliable evidence and the court must exercise great caution, because extra-judicial confession alone cannot be the basis for conviction, and it must be Page 9 of 20 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Jun 03 2025 Downloaded on : Fri Jun 06 21:59:21 IST 2025 NEUTRAL CITATION R/CR.A/326/1998 JUDGMENT DATED: 13/05/2025 undefined supported by other corroborative evidence. Similarly, Shri Pathak has relied upon Sankla v. State of Rajasthan, 1993(2) Crimes, page number 711, in which a similar opinion has been expressed by the Hon'ble Rajasthan High Court. Shri Pathak has also relied upon Jadumani Khanda v. State, 1993(2) Crimes, page number 1197, published in the same volume of Crimes, in which the prosecution stated that the accused had confessed before the panchayat, that is, the village assembly, but it was held that such confession was not voluntary, and hence, could not be relied upon. In addition, Shri Pathak has relied upon Vasantaben v. State of Gujarat, 1996(2) Crimes, page number 538, in which also it was held that extra-judicial confession is a very weak type of evidence and unless some other corroborative evidence is found, it is dangerous to rely upon it to convict the accused.
(38) If the accused makes a statement and if it is in the nature of confession of any crime, then it can be said to be an extra-judicial confession. But unless it is proved that such confession was voluntary and that no fear, pressure, or inducement was given to make such confession, it cannot be said to be proper or legal to rely upon it to convict the accused. If an extra-judicial confession is made voluntarily, then it can be relied upon. There is no specific provision regarding the recording of such confession, and even if sometimes it is made orally in person, then also if other corroborative evidence is available, the accused can be convicted relying upon it, as has been held in some cases. But considering the principles laid down above, the present case requires examining what the situation is.
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(39) Considering the entire evidence, it appears that the incident occurred on 29-4-97 and that the villagers were gathered on 13-5-
97. The evidence also clearly shows that Ramanbhai and other witnesses were sent to the accused number 2, Govindbhai. There is no evidence that the accused number 2, Govindbhai, was present in that village assembly. In these circumstances, it is not proved that the accused number 2 made any confession in the presence of the villagers. Witness Ramanbhai Kodarbhai and other witnesses were again sent to Govindbhai, but again Ramanbhai returned. On the second occasion, a written paper on stamp paper was sent to him, but since the writing mentioned that Govindbhai had brought poison and administered it, Govindbhai refused to sign it. In such circumstances, even if there is a signature of Govindbhai on that document, there is nothing in the circumstances to show that the same was made voluntarily. Hence, even if it is proved that Govindbhai signed the said document, the prosecution does not get any ground to treat that document as an extra-judicial confession, and hence, it is neither proper, reasonable, nor desirable to rely upon extra-judicial confession and convict accused number 2. If truly accused number 2 had the intention to cause the death of Shanabhai along with accused number 1, Madhuben, then he would have either totally denied or voluntarily confessed. But according to the evidence, the accused has not denied the relationship with accused number 1, but has specifically denied the allegation of bringing and administering poison, and therefore, any subsequent confession has no meaning, and it is not proper to Page 11 of 20 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Jun 03 2025 Downloaded on : Fri Jun 06 21:59:21 IST 2025 NEUTRAL CITATION R/CR.A/326/1998 JUDGMENT DATED: 13/05/2025 undefined treat it as an extra-judicial confession and convict accused number 2 relying upon it."
13. It is not in dispute and without dwelling on the aspect that respondent herein - original accused No.2 having confessed illicit relation with accused No.1 Madhuben, the appeal is required to be confined only on the issue on hand. It emerges that the respondent herein declined to sign on the written stamp paper. It was stated that a poisonous substance was supplied by the accused No.2. We have also perused the original records, wherein, stamp paper is produced on record below Ex.11. It emerges that the said document is not proved under Section 24 of the Indian Evidence Act. It further emerges that the said documents also are rightly not taken into consideration by the competent court in light of the fact that there is no evidence as to how and before whom the same was signed. Mere production of stamp paper does not in any way prove the contents so as to lay conviction of the accused No.2 in absence of any evidence as such. On perusal of the entire record against accused No.2, we have also considered the deposition of Lakhabhai Kalubhai (PW-10) below Ex.25 which is also produced at page No.155, who was present at the time of incident. However, nothing comes on record so as to arraign the accused no.2 - Govindbhai (respondent herein) in alleged crime so as to make him responsible for the impugned action which resulted into death of deceased Shanabhai.
14. It is not in dispute that whole case of prosecution rests on circumstantial evidence and therefore, the link of proximity of time as well as consistence of non-break of chain linking circumstantial evidence is required to be established by the prosecution beyond reasonable doubt.
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15. Keeping in mind aforesaid factor and reverting back to the facts of the case on hand, as per case of the prosecution, accused no.1 - Madhuben (wife of the deceased) was having extra martial relationship with accused no.2 - Govindbhai (respondent herein) and in furtherance thereof, as alleged by the prosecution to eliminate deceased who otherwise was hurdle in so called illicit relationship, both the accused with common intention planned to eliminate deceased and thereby on fateful day, accused no.1 is alleged to have administered poisonous substance to the deceased and ultimately deceased succumbed to it.
16. It further transpires that questioned incident took place on 29.04.1997 and villagers assembled on 13.05.1997 and solely on the basis of relationship with accused no.1, accused no.2 (respondent herein) was called to remain present in the panchayat so as to admit and confess his involvement in questioned offence impleading him of having played vital role in supplying poisonous substance.
17. However, accused no.2 (respondent herein) refused the said proposal and he even did not participate or appeared before the Gram Sabha and ultimately, typed stamp paper appears to have been sent to the accused no.2 (respondent herein) while fixing responsibility of accused no.2 to accord and sign the same but considering entire document which makes it clear that the accused no.2 (respondent herein), as conceded, was having extra-marital affair with accused no.1 and expressly refused of having any involvement in activities as alleged by the prosecution in any form.
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18. In light of aforesaid, prosecution has placed heavy reliance on written stamp paper claiming to be construed as confession of accused no.2 (respondent herein) and submitted that despite cogent material forming part of record, learned Sessions Judge appears to have committed error in not believing the same. At this juncture, it is apt to deal with aspect of confession / confessional statement either in the form of written or oral, more particularly, extra judicial confession made to interested persons who otherwise have nexus rather interest with outcome of the consequences and issue therein.
19. So far as case on hand is concerned, prosecution has heavily relied on document (Ex. 11) so as to prove guilt of the accused - respondent herein. As discussed herein above, contents of document either by way of witness attested or otherwise in whose name document claimed to be executed, cannot be believed, by producing the same as burden lies on prosecution to prove the same because mode of confessional statement and particulars thereof are to be proved in consequence with substantive material while cautioning maker of such confessional statement as to consequence that may arise from such confessional statement.
20. The whole case as discussed above rests solely on circumstantial evidence as well as, as claimed by prosecution rest on extra judicial confession made by the accused before witness, who was called upon to sign typed stamp paper containing confession of accused as to guilt and offence in question, so also extra marital affair with main perpetrator. Thus, credence as to admitting the fact of having extra-marital affair with Page 14 of 20 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Jun 03 2025 Downloaded on : Fri Jun 06 21:59:21 IST 2025 NEUTRAL CITATION R/CR.A/326/1998 JUDGMENT DATED: 13/05/2025 undefined accused no.2 by the accused - respondent herein seems to have been made with full understanding the consequences flowing from it. Further, rest of the portion incriminating respondent in the commission of alleged offence has been refuted forthwith and therefore, reliance placed by the prosecution as same to be construed as confessional statement, burden lies on prosecution to prove the same that same has been done with free will and self volition of the respondent herein and is not in violation of provisions of Section 24 and 25 of the Evidence Act, as simultaneous theory of conduct of accused before or immediately after incident carry much importance. Apart from above, confession may be divided into two classes i.e. judicial confession and extra judicial confession. Judicial confession has to be made before the learned Magistrate or Court in judicial proceedings, whereas, extra judicial confession are those which are made by the party elsewhere than before the learned Magistrate or Court.
21. In the peculiar facts of the present case, efforts made by the prosecution as to contents of so called writing prepared by the prosecution witness and send for signature and acknowledgment to the accused, has been given term of confession. We have gone through contents of the said writing produced vide Ex.11, wherein, primarily it appears that accused has expressly conceded of having extra marital relationship with main perpetrator but rebut to sign and acknowledge rest of the writing asking accused to admit and confess guilt of the offence in question. Thus, the so called theory of confessional statement raised by the prosecution does not inspire confidence and fulfill required criteria and lacks of having the same being made voluntarily as well as the Page 15 of 20 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Jun 03 2025 Downloaded on : Fri Jun 06 21:59:21 IST 2025 NEUTRAL CITATION R/CR.A/326/1998 JUDGMENT DATED: 13/05/2025 undefined credence of such statement appears to have been made with intend to induce fact or in the form of promise required to be acted upon. Thus, in view of provision of section 24 of the Indian Evidence Act, 1872, it makes abundantly clear that confession cannot used against person unless Court is satisfied that it is voluntarily acted upon which can never take place of theory of statement in the form of confession and the ingredients thereof, lacks in the case on hand so as to believe the same to be one made out of free will and voluntarily and no fear, pressure and inducement was given to make such statement or sign the document below Ex.11.
22. One of the important aspect to place reliance on confessional statement that words spoken by witness should be clear unambiguous and unmistakenly convey that accused is perpetrator of crime and nothing is omitted by the witness which may militate against it. As while evaluating such evidence of the witness to rigorous test on touchstone of credibility requires to be exercised and such aspects seems to be lacking in the case as discussed in preceding paragraphs.
23. At this stage, it would be apt to mention that extra judicial confession, if suffers from material discrepancies or inherent improbabilities and does not appear to be cogent, such evidence cannot be considered as the Court is duty bound to ensure that such statements relied and placed by prosecution does inspire confidence rather corroborated by other prosecution evidence. Admittedly, evidence placed by prosecution do not establish factum of questioned confessional statement, appear to be voluntarily rather free from any discrepancies or Page 16 of 20 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Jun 03 2025 Downloaded on : Fri Jun 06 21:59:21 IST 2025 NEUTRAL CITATION R/CR.A/326/1998 JUDGMENT DATED: 13/05/2025 undefined inherent improbabilities. Therefore, same has been rightly been discarded by the learned Competent Court and this Court endorse the same as rigor of prosecution evidence failed to establish factum of confessional statement.
24. Thus, in view of aforesaid, consequences of confession are to be believed only and only when prosecution establish fact of confession having been made by the accused - maker out of free will and volition while understanding notional consequences flowing from it. Apart from that confession claimed to have been made by the accused should not be made under duress or coercion and in the case on hand, it appears that same has been made under duress and adopting pressure tactics on the accused - respondent so as to sign typed written document admitting his guilt.
25. Applying the same in the case on hand, prosecution seems to have miserably failed to prove such material on record and very violation and willingness of accused No.2 (respondent herein) seems to be lacking and therefore, case of the prosecution cannot be believed. In opinion of this Court, confession made by accused No.2 (respondent herein) was not made voluntarily but was made under duress and threat, therefore, it cannot be acted upon and rightly has been discarded by the learned competent court.
26. It transpires that case of the prosecution does not even fall within criteria / principle culled out by the Hon'ble Supreme Court in plethora of decisions. In the case of Bhupatbhai Bachubhai Chavda & Anr. v.
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State of Gujarat [2024 INSC 295], Hon'ble Supreme Court has held as under :-
"6. It is true that while deciding an appeal against acquittal, the Appellate Court has to reappreciate the evidence. After re- appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on evidence on record. Perusal of the impugned judgment of the High Court shows that this question has not been adverted to. Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well-settled principle that an order of acquittal further strengthens the presumption of innocence of the accused. After having perused the judgment, we find that the High Court has not addressed itself on the main question.
7. The second error the High Court committed is found in paragraph 23 of the impugned judgment. The High Court has gone to the extent of recording a finding that the appellants have failed to adduce evidence in their support, failed to examine the defence witness and failed to establish falsity of the prosecution's version. This concept of the burden of proof is entirely wrong. Unless, under the relevant penal statute, there is a negative burden put on the accused or there is a reverse onus clause, the accused is not required to discharge any burden. In a case where there is a statutory presumption, after the prosecution discharges initial burden, the burden of rebuttal may shift on the accused. In the absence of the statutory provisions as above, in this case, the burden was on the prosecution to prove the guilt of the accused beyond a reasonable doubt. Therefore, the High Court's finding on the burden of proof is completely erroneous. It is contrary to the law of the land.
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27. The prosecution failed to establish nexus in the form of extra marital relationship between accused in questioned crime solely on the ground of respondent having extra marital relationship with main perpetrator (wife of deceased), though to substantiate the case, the prosecution appears to have examined child witness Jayendra after examining his competence to depose before the Court, as to the way and time when accused used to visit and meet main accused (perpetrator). However, said fact even if it is proved, solely relates to relationship between the accused, it does not entail rather fasten responsibility on accused (respondent herein) with the crime in question, more so when respondent herein has fairly admitted of having relationship with main accused but in absence of any material to connect respondent with main accused (perpetrator) behind commission of crime, solely on the basis of relationship, the accused - respondent herein cannot be arraigned on assumption and presumption and conviction cannot rest on such weak piece of evidence.
28. In the instant case, the learned APP for the appellant has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
29. Considering the aforesaid facts and circumstances of the case and considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.
Page 19 of 20 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Jun 03 2025 Downloaded on : Fri Jun 06 21:59:21 IST 2025 NEUTRAL CITATION R/CR.A/326/1998 JUDGMENT DATED: 13/05/2025 undefined
30. In view of the above and for the reasons stated above, present Criminal Appeal deserves to be dismissed and is accordingly dismissed.
31. The aforesaid order is passed with respect to the original accused no.2, the same will not in any way affect the proceedings, if any, which are pending qua the original accused no.1. The record and proceedings be transmitted to the competent court accordingly.
(VAIBHAVI D. NANAVATI,J) (R. T. VACHHANI, J) Mitesh/sompura Page 20 of 20 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Jun 03 2025 Downloaded on : Fri Jun 06 21:59:21 IST 2025