The State Of Maharashtra vs Suresh Dada Aher
2021 Latest Caselaw 6368 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CRIMINAL APPELLATE JURISDICTION
                            CRIMINAL APPEAL NO.987 OF 2007

 The State of Maharashtra                         )
 (Through Police Inspector,                       )
 Sarkarwada Police Station, Nasik)                ) ....Appellant/Complainant
                V/s.
 Suresh Dada Aher                                 )
 Age : 41 years,                                  )
 R/o. Flat No.1, Hari Sansar Society,             )
 Pumping Station Road, Nasik                      ) ....Respondent/Accused
                                  ----
Mrs. M.M. Deshmukh, APP for State - Appellant.
Ms. Spenta Havewala, Advocate appointed for respondent.
                                  ----
                                         CORAM : K.R.SHRIRAM, J.

                                         DATE     : 9th APRIL 2021
ORAL JUDGMENT :

1                  This is an appeal impugning an order and judgment dated

31st March 2006 passed by the 5th Ad-hoc Additional Sessions Judge, Nashik,

acquitting respondent (accused) of offences punishable under Section

498(A) (Husband or relative of husband of a woman subjecting her to

cruelty) read with Section 306 (Abetment of suicide) of the Indian Penal

Code (IPC).

2 On 16th March 2021 since nobody appeared for respondent, this

Court appointed Ms. Spenta Havewala, Advocate to represent respondent

and assist the Court. Before I proceed with the case, I must express my

appreciation for the assistance rendered and endeavour put forth by

Ms. Havewala, Advocate.

Gauri Gaekwad




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3                 It is prosecution's case that accused was married to one Malti

on or about 2nd May 1985. They had three children, a daughter by name

Vidula, who is DW-2 and two sons. According to prosecution, the initial 5 to

6 years accused and Malti lived happily but thereafter, accused started

tormenting Malti and harassing her by making demand for purchasing a

house. It seems accused and his relatives used to allege that sufficient dowry

was not brought by Malti. Accused used to also assault Malti. Because of this

constant harassment, the father of Malti - Kashinath P. Birari (PW-3), who

had four daughters including Malti, purchased a plot of land in or around

Nashik in the name of Malti. Accused was unhappy with that and was

insisting that the land should be transferred in his name. His relatives also

used to instigate accused. It is prosecution's case that accused would come

drunk, not provide any money for running the household and used to hit

Malti on her head and would pretend that Malti had some mental problems.

Accused used to also pressurize Malti to agree for a divorce so that he could

remarry and once even published a notice of divorce to Malti in a local

newspaper. Because of this constant mental and physical harassment, Malti

got very disturbed and during those times, accused would admit Malti to a

Mental Hospital. According to prosecution, these were all schemes of

accused to create evidence that Malti had turned insane and he would take

Malti to different Doctors to ensure that Malti never got cured.

4 Some time in September 2000, Malti was admitted to Mental

Hospital at Yerawada, Pune. After she was cured, PW-3 complainant and

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father of Malti, took her back to her matrimonial home. This was because it

was Diwali time and Malti wanted to stay with her children who were in the

house of accused. When Malti was taken home, only Vidula was at home

and the two sons were with accused, who was working at Chandwad, a

place which was about two hours drive away from Nashik. Accused was a

Government Servant and was posted at Chandwad. PW-3, therefore, left

Malti at her matrimonial house with Vidula and returned to his village.

5 On 26th October 2000, Vijay Tukaram Pawar (PW-13), the

maternal uncle of Malti had gone to Malti's matrimonial home on a courtesy

call. He met Vidula and when he enquired about Malti, he was informed

that Malti was sleeping. As it was the day of Diwali, PW-13 found it strange

that Malti was sleeping at that time so he went inside the room where Malti

was supposed to be sleeping. PW-13 found Malti was dead at that time and

he immediately informed the Police and PW-3. Vidula also informed her

uncle, who informed accused. Accused immediately returned from

Chandwad. The parents and relatives of Malti also arrived. Police registered

it as accidental death and commenced investigation. Inquest panchnama

and spot panchnama were drawn and body was sent for postmortem.

Thereafter, PW-3 lodged a complaint and an offence came to be registered

based on the complaint. Chargesheet was filed. Accused pleaded not guilty

and claimed to be tried. The defence of accused is of total denial and

according to accused, Malti had schizophrenia and he had been constantly

taking Malti to various Doctors to treat her for her problems. Accused also

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gave written submissions as statement under Section 313 of the Code of

Criminal Procedure. Accused also stepped into the box as DW-1 and was

subjected to extensive cross examination by prosecution. Vidula, the

daughter of accused and Malti, who was present when Malti was found

dead, was also examined as DW-2. The neighbour of accused one Ms. Snehal

Sadavarte also gave evidence for the defence as DW-3. Learned APP

submitted that DW-2 had earlier written letters to her grandparents alleging

that accused used to assault Malti in an inebriated condition. DW-2 has

denied that the letters, which were at Exhibit 59/1 to 59/6, were in her

hand writing or that she has signed the same. DW-2 has also denied Article

C/C-1.

6 To drive home the charge, prosecution led evidence of

16 witnesses, viz., Rajendra Ramdulare Pardeshi, panch witness as PW-1;

Vasant Murlidhar Avhad, panch witness as PW-2; Kashinath P. Birari,

complainant and father of Malti as PW-3; Pushpa Vishnu Rasal, panch

witness as PW-4; Ramdas S. Bhamare, panch witness as PW-5; Dr. Sambhaji

Vinayak Deshmukh, Medical Officer as PW-6; Dr. Mangesh R. Thete, Medical

Officer as PW-7; Seema Shantaram Patil, sister of Malti as PW-8; Hiralal

Namdeo Mastoodh, panch witness as PW-9; Rajesh Abhiman Bhamre, panch

witness as PW-10; Ambadas Eknath Tarle, panch witness as PW-11;

Dr. Aruna Rajendra Pagare, sister of Malti as PW-12; Vijay Tukaram Pawar,

maternal uncle of Malti as PW-13; Firoz Issaq Shaikh, hand writing expert as

PW-14; Bhiva Shamrao Deokar, Investigating Officer as PW-15; and

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Mr. Pukharaj M. Jain, panch witness as PW-16.

7 With the assistance of the learned APP and Ms. Havewala, I

considered the impugned judgment, evidence and in my view, the

conclusion arrived at by the Trial Court cannot be faulted.

8 Primarily prosecution's case is that Malti was ill-treated and

harassed by accused as a result of which Malti committed suicide. To prove

ill-treatment, prosecution has examined PW-3, father of Malti, PW-8 and

PW-12, both sisters of Malti and PW-13, maternal uncle of Malti. We have to

note that these four are interested witnesses and therefore, their evidence

has to be considered very carefully. All four have said about ill-treatment

and harassment by accused, accused was demanding money for purchase of

house, accused was upset that PW-3 had purchased some land in the name

of Malti and Malti was refusing to transfer the land in the name of accused,

accused would come home drunk and beat Malti and Malti was upset that

accused gave notice in a local newspaper about divorcing Malti.

9 At this stage, I would mention as regards the notice in

newspaper, though accused tried to wash of his hands, the Trial Court has

rightly concluded that the notice has been issued by accused. What we have

to see is whether the charge under Sections 498 (A) and 306 have been

proved by prosecution. If one considers the evidence of PW-3 or PW-8 or

PW-12 or PW-13, none of them have stated that they ever saw accused in an

inebriated condition and that they saw accused beating Malti. None of them

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have also stated that accused ever demanded directly from them any money

or that they saw accused making this demand on Malti or that any of them

saw accused ill-treating Malti for not transferring the land in his name.

Great reliance has been placed on Exhibit 67, which is a Samzauta Patra

executed by accused and Malti on 8th January 1999. The notice in

newspaper has been given by accused before 8th January 1999. There is no

allegation anywhere that accused harassed Malti after this Samzauta Patra

was entered into. Moreover, if one considers this Samzauta Patra, there is no

whisper about any of the allegations made by prosecution witnesses, viz.,

PW-3 or PW-8 or PW-12 or PW-13. On the contrary, though it records there

were disputes between Malti and accused, it also records that the disputes

arose because of instigation by their respective relatives. The Samzauta

Patra also records that it is the relatives who would fill their ears with

falsehood against the other and because they believed those relatives, there

were disputes between Malti and accused. Otherwise there are no disputes.

Therefore, this Samzauta Patra does not come to the help of prosecution.

10 PW-8 says accused was assaulting Malti on her head. PW-12

also says the same thing but adds he saw accused assaulting Malti so she

could get mentally affected. They denied that Malti had any mental issues or

insanity. Accused has, however, given several dates that treatment was given

to Malti for mental disturbance and these dates were in the year 1991,

1994, 1997, 1998, 1999 and 2000. DW-2, who is the daughter of Malti, has

testified that Malti was behaving in an eccentric manner. DW-3 also says

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Malti was not behaving properly with her children and others and Malti's

behaviour was not normal. PW-15, Investigating Officer also admits that

Malti was suffering from schizophrenia. Even PW-3, complainant admits that

Malti was admitted to Civil Hospital at Nashik and Mental Hospital at Thane

and Yerawada, Pune. Therefore, the fact that Malti had mental issues cannot

be doubted.

11 PW-15, Investigating Officer also admits that Malti was

admitted to Civil Hospital, Nashik as per the orders of the Chief Judicial

Magistrate and thereafter, she was admitted to Mental Hospital at Thane

followed by Civil Hospital at Yerawada, Pune. Therefore, the prosecution's

stand that accused got all documents wrongfully to build up a case against

Malti to show that she had mental illness has to be rejected. PW-6,

Dr. Deshmukh, Medical Officer at Yerawada, Pune (a Senior Psychiatrist)

states that on 13th September 2000 he found Malti had recovered and

therefore, he had recommended her discharge. PW-6 says that letters were

also sent to accused but since accused did not turn up, PW-3, father of Malti,

came to the hospital and took Malti and left her at the house of accused. I

ask myself, so what? Is that enough to satisfy prosecution's charge under

Section 498 (A) or Section 306? Answer is no.

Another point which has gone against prosecution and I cannot

fault the conclusion of the Trial Court is that the chemical analysis report

and certificate of final cause of death show that death was due to

organophosphorus insecticides. The Trial Court has rightly rejected the case

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of defence that Malti could have taken over dose of the medicines which

were prescribed while she was discharged from the Mental Hospital at

Yerawada, Pune. It is prosecution's case that during the spot panchnama no

bottle or container containing or that contained organophosphorus

insecticides is seized.

12 All these points alongwith many other grounds raised by the

Trial Court with which I agree and which for the sake of brevity, I am not

dealing with, creates a doubt on the prosecution's evidence. Even if we

assume for a moment that Malti was subjected to ill-treatment at the hands

of accused, every act of cruelty is not an offence under Section 498 (A) of

IPC. Ms. Havewala submitted that what would amount to an offence under

Section 498 (A) has been discussed in catena of judgments and the cruelty

must be of such a degree that it must be willful conduct of such a nature as

is likely to drive the woman to commit suicide or to cause grave injury or

danger to life, limb and health of the woman. Ms. Havewala relied upon a

judgment of this Court in the case of The State of Maharashtra V/s. Shri

Balu Ravji Abhang1, in which paragraphs 19 to 21 read as under :

19. Law on what would amount to an offence under Section 498A, has been well discussed in catena of judgments. It is settled law that under Section 498A of IPC, every cruelty is not an offence. The cruelty must be of such a degree as contemplated by the Section, i.e., it must be willful conduct of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb and health of the woman.

20. The Division Bench of this court in Kamlesh Ghanshyam Lohia and Ors. Vs. State of Maharashtra, through the commissioner of police &Ors., in paragraphs 12 to 15, has observed as under:

1. MANU/MH/0287/2020

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"12. The allegations against the petitioners are, therefore, required to be appraised through the aforesaid backdrop. If we take the allegations in the FIR at par, qua the petitioners, at best, the following three allegations can be attributed to the petitioners :

(i) After the first informant and Krishna shifted to Juhu in June 2012,the petitioners occasionally visited them and during those visits, insulted the first informant by calling her fat and dark complexioned.

(ii) On every festive occasion, the family members of Krishna demanded clothes, ornaments and money from her parents and those demands were met.

(iii) All the family members humiliated the first informant by calling her, "infertile" and made her to demand money from her parents.

13. Whether the aforesaid allegations, even if taken at par, would warrant the prosecution of the petitioners is the moot question. It is indisputable that the cruelty under section 498-A of IPC has a specific legal connotation. Ordinary quarrels, differences of views and wear and tear of life, which every home witnesses, do not fall within them is chief of cruelty which section 498-A of IPC punishes. Nor, every ill-treatment or harassment falls within its dragnet. To fall within the tentacles of section 498-A, the married woman must have been subjected to cruelty which would drive the woman to commit suicide or to cause grave injury or danger to her life, limb or health, or with a view to coerce her or any person related to her to meet an unlawful demand of property. Mere demand of money or property, unaccompanied by any harassment, would also not fall within the mischief of section 498-A. There has to be a nexus between the demand and the consequent harassment.

14. On the anvil of the aforesaid legal position, if the allegations enumerated above, are weighed, it becomes evident that the first allegation of insulting the first informant after she shifted to Juhu in the year 2010, is of general nature. The allegation is stale as well. By no stretch of imagination, it can be stated that the alleged conduct had the propensity to drive the first informant to commit suicide or cause harm to herself.

15. The second allegation of all the family members of Krishna demanding money, clothes and ornaments on each of the festive occasions is also of general nature and bereft of any specific instance and authorship. The said allegations, at the highest, would indicate that on festive occasions certain articles were demanded. In the absence of the allegation that the first informant was subjected to harassment either in order to meet the unlawful demands of property or on her failure to meet such demands, the

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second allegation looses the incriminating tendency.

"21. A Learned Single Judge of this Court in Neeraj Subhash Mehta Vs. The State of Maharashtra, in paragraphs 9 and 10 has observed asunder:

"9. Section 113A of the Evidence Act prescribes rule of presumption in case of suicidal death by a married woman. Whenever the question arose as to whether commission of suicide by a woman has been abetted by her husband or relatives of her husband and it is shown that she had committed suicide within the period of seven years of her marriage and that her husband or relatives of her husband had subjected her to cruelty, then the court may presume "having regard to all other circumstances of the case" that such a suicide has been abetted by her husband or relatives of her husband. It is, thus, clear that, this presumption cannot be raised automatically on proof of suicidal death within seven years of marriage and subjecting a married woman to cruelty. Something more is required to be seen for drawing this presumption.

10. By catena of judgments of this court as well as Apex Court what amounts to cruelty as envisaged by Explanation to Section 498A of IPC is explained. Cruelty implies harsh and harmful conduct with certain intensity and persistence. It covers acts causing both physical and mental agony and torture or tyranny and harm as well as unending accusations and recrimination reflecting bitterness putting the victim thereof to intense miscarries. The conduct, in order to prove guilt, must be such as strongly stirring up the feeling in the mind of a married woman that life is now not worth living and she should die, being the only option left. In other words, provisions of Section 498A of the IPC envisages intention to drawing or force a woman to commit suicide by unabetted persistence and grave cruelty. A willful conduct of such a nature as is likely to propel or compel a married woman to commit suicide or to cause grave injury or danger to her life, limb or health is required to be established. In other words, matrimonial cruelty is included from the definition of legal cruelty. To put it in other words, ordinary petulance and discord or differences in domestic life does not amount to cruelty. By keeping this aspect in mind, let us prima facie examine the instant case for a limited purpose as to whether the applicant/accused is entitled for liberty. If the impugned judgment and order of the trial court is perused, then it is seen that the reasoning parties in paragraph 65 of the judgment. Reliance is placed on evidence of PW1 to PW3 by the learned trial court. It is observed that the dispute was over the issue of the deceased having made "kaccha chapati." Further observations are to the effect that this was too trivial matter to invoke extreme and harsh response of calling her brother and parents. In other words, the learned trial Judge was very well aware of the fact that the incident

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of commission of suicide was preceded by a trivial incident in the matrimonial life of Neha. Still, without further discussion, offence punishable under Section 498A of the IPC is held to be proved. Then by taking aid of Section 106 of the Evidence Act, as well as Section 113A thereof, it is held that the offence punishable under Section 306 of the IPC is proved."

Ms. Havewala submitted that the evidence recorded does not

meet with all these ingredients.

13 As regards Section 306, Ms. Havewala submitted that in this

case if one reads prosecution's charges, it is the case of abetment by

instigation. Ms. Havewala relied upon Shri Balu Ravji Abhang (Supra) in

which paragraphs 22 to 28 read as under :

22. As regards Section 306, it reads as under :

"306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

What is abetment and who is an abettor can be found in Sections 107 and 108 of IPC which read as under:

"107: Abetment of a thing:- A person abets the doing of a thing, who:-

(1) Instigates any person to do that thing; or (2) Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (3) Intentionally aids, by any act or illegal omission, the doing of that thing." "108. Abettor.--A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor."

23. Here is the case of abetment by instigation. When is a person said to instigate another ? The word 'instigate' literally means to goad, or urge, or to provoke, or incite, or encourage, to do an act, which the person, otherwise would not have done. It is well settled, that in order to amount to abetment, there must be mens rea or community of intention. Without knowledge or intention,

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there can be no abetment and the knowledge and intention must relate to the act said to be abetted, i.e., suicide, in this case. In order to constitute 'abetment by instigation', there must be a direct incitement to do the culpable act. This issue has been discussed by various High Courts and Supreme Court of India and some of those pronouncements are discussed here.

24. A Learned Single Judge of the Kerala High Court in Cyriac, S/o. Devassia and another Vs. SubInspector of Police, Kaduthuruthy and another, dealt with extensively the concept of abetment to commit suicide after referring to a number of pronouncements including the decision of the Supreme Court of India.

The Learned Single Judge ultimately summarized the legal position as follows :

"17. From the discussion already made by me, I hold as follows : The act or conduct of the accused, however, insulting and abusive those may be, will not by themselves suffice to constitute abetment of commission of suicide, unless those are reasonably capable of suggesting that the accused intended by such acts consequence of suicide. Even if the words uttered by the accused or his conduct in public are sufficient to demean or humiliate the deceased and even to drive him to suicide, such acts will not amount to instigation or abetment of commission of suicide, unless it is established that the accused intended by his acts, consequence of a suicide. It is not enough if the acts of the accused cause persuasion in the mind of the deceased to commit suicide.

18. An indirect influence or an oblique impact which the acts or utterances of the accused caused or created in the mind of the deceased and which drove him to suicide will not be sufficient to constitute offence of abetment of suicide. A fatal impulse or an illfated thought of the deceased, however unfortunate and touchy it may be, cannot fray the fabric of the provision contained in Section 306 IPC. In short, it is not what the deceased 'felt', but what the accused 'intended' by his act which is more important in this context."

25. In paragraph 19 of Shivaji Shitole and Ors. Vs. State of Maharashtra & Anr.7 this court has summed up the legal position on Section 306. Paragraph 19 reads as under:

"19. The legal position that emerges from the above discussion is as follows : Even if a person would commit suicide because of the torments of an accused, the accused cannot be said to have abetted the commission of suicide by the deceased, unless the accused would intend, while causing torments to the victim/deceased, that he should commit suicide. Even if the rigour of this proposition is diluted, still, the least that would be required is, that it should be shown that the accused could reasonably foresee that because of his conduct, the victim was almost certain or at least quite likely

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to commit suicide. Unless that the victim should commit suicide, is either intended, or can be reasonably foreseen and expected a person cannot be charged of having abetted the commission of suicide, even if the suicide has been committed as a result of some of the acts committed by the accused. A perusal of the reported judgments show that even in cases where the accused had uttered the words such as "go and die", in abusive and humiliating language, which, allegedly, led to the committing of suicide, it was held that it would not amount to instigation and that consequently, there would be no offence of abetment of suicide."

26. The Apex Court in the judgment of Ude Singh & Ors. Vs. State of Haryana, has pithily explained what amounts to the abetment. Paragraphs 37 to 40 of the said judgment read as under:

37. Thus, "abetment" involves a mental process of instigating a person in doing something. A person abets the doing of a thing when: (i) he instigates any person to do that thing; or

(ii) he engages with one or more persons in any conspiracy for the doing of that thing; or (iii) he intentionally aids, by acts or illegal omission, the doing of that thing. These are essential to complete the abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do anything.

38. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act/s of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behaviour and responses/reactions. In the case of accusation for abetment of suicide, the Court would be looking for cogent and convincing proof of the act/s of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case.

39. For the purpose of finding out if a person has abetted commission of suicide by another, the consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions above-referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and

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by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case may fall within the four-corners of Section 306 IPC. If the accused plays an active role in tarnishing the self-esteem and self-respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its ownfacts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased.

40. We may also observe that human mind could be affected and could react in myriad ways; and impact of one's action on the mind of another carries several imponderables. Similar actions are dealt with differently by different persons; and so far a particular person's reaction to any other human's action is concerned, there is no specific theorem or yardstick to estimate or assess the same. Even in regard to the factors related with the question of harassment of a girl, many factors are to be considered like age, personality, upbringing, rural or urban set ups, education etc. Even the response to the ill-action of eve-teasing and its impact on a young girl could also vary for a variety of factors, including those of background, self- confidence and upbringing. Hence, each case is required to be dealt with on its own facts and circumstances.

27. Paragraph 8 of the unreported judgment of the Apex Court in Rajesh Vs. State of Haryana9 reads as under:

8. Conviction under Section 306 IPC is not sustainable on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused, which led or compelled the person to commit suicide. In order to bring a case within the purview of Section 306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC. (See Amalendu Pal alias Jhantu V. State of West Bengal).

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28. The courts have held that the evidence must suggest or indicate that the accused knew or had a reason to believe that deceased would commit suicide.

14 In my view, there is no evidence whatsoever to even suggest

that Malti committed suicide because of ill-treatment or cruelty by accused.

There is also no evidence whatsoever that accused by his acts intended Malti

to commit suicide. Learned APP submitted that the notice, which was given

by accused in the newspaper, could be termed as an act with which Malti

was disturbed and that instigated Malti to commit suicide. I cannot agree

with the learned APP because the newspaper notice was given even before

Exhibit 67 Samzauta Patra was entered into in January 1999 and Malti

committed suicide in October 2000.

15 Ms. Havewala submitted that it is settled law that unless the

conclusions reached by the Trial Court are found to be palpably wrong or

based on erroneous view of the law or if such conclusions are allowed to

stand, they are likely to result in grave injustice, Appellate Court should not

interfere with the conclusions of the Trial Court. Ms. Havewala also

submitted that there is a presumption of innocence in favour of accused and

such presumption is strengthened by the order of acquittal passed in his

favour by the Trial Court. Ms. Havewala relied upon Shri Balu Ravji Abhang

(Supra) in which paragraphs 9 to 11 read as under :

9. The Apex Court in Ghurey Lal Vs. State of U.P. has culled out the factors to be kept in mind by the Appellate Court while hearing an appeal against acquittal. Paragraph Nos.72 and 73 of the said judgment read as under :

72. The following principles emerge from the cases above :

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1. The appellate court may review the evidence in appeals against acquittal under sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that trial court was wrong.

73. In light of the above, the High Court and other appellate courts should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when :

i) The trial court's conclusion with regard to the facts is palpably wrong;

ii) The trial court's decision was based on an erroneous view of law;

iii) The trial court's judgment is likely to result in "grave miscarriage of justice";

iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

v) The trial court's judgment was manifestly unjust and unreasonable;

vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc.

vii) This list is intended to be illustrative, not exhaustive.

2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.

3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/ appellate

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courts must rule in favour of the accused.

10. The Apex Court in many other judgments including Murlidhar & Ors. Vs. State of Karnataka2 has held that unless, the conclusions reached by the trial court are found to be palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, Appellate Court should not interfere with the conclusions of the Trial Court. Apex Court also held that merely because the appellate court on re- appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. We must also keep in mind that there is a presumption of innocence in favour of respondent and such presumption is strengthened by the order of acquittal passed in his favour by the Trial Court.

11. The Apex Court in Ramesh Babulal Doshi Vs. State of Gujarat has held that if the Appellate Court holds, for reasons to be recorded that the order of acquittal cannot at all be sustained because Appellate Court finds the order to be palpably wrong, manifestly erroneous or demonstrably unsustainable, Appellate Court can reappraise the evidence to arrive at its own conclusions. In other words, if Appellate Court finds that there was nothing wrong or manifestly erroneous with the order of the Trial Court, the Appeal Court need not even re-appraise the evidence and arrive at its own conclusions.

16 There is an acquittal and therefore, there is double presumption

in favour of accused. Firstly, the presumption of innocence available to

accused under the fundamental principle of criminal jurisprudence that

every person shall be presumed to be innocent unless they are proved guilty

by a competent court of law. Secondly, accused having secured his acquittal,

the presumption of his innocence is further reinforced, reaffirmed and

strengthened by the Trial court. For acquitting accused, the Trial Court

rightly observed that the prosecution had failed to prove its case.

17 In the circumstances, in my view, the opinion of the Trial Court

cannot be held to be illegal or improper or contrary to law. The order of

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acquittal, in my view, need not be interfered with.

18                Appeal dismissed.



                                                      (K.R. SHRIRAM, J.)




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