The State Of Maharashtra vs Prasanna Vitthal Patil
2021 Latest Caselaw 136 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CRIMINAL APPELLATE JURISDICTION
                          CRIMINAL APPEAL NO.425 OF 2008

 The State of Maharashtra
 (Through P.S.O. Deorukh P.S.
 Tal. Sangmeshwar, Dist. Ratnagiri                 ....Appellant/Complainant
                V/s.
 Prasanna Vitthal Patil
 Age - 25 years, R/o. Deorukh
 Warchi Ali, Sangmeshwar                           .....Respondent/Accused
                                   ----
Ms. Anamika Malhotra, APP for State - Appellant.
Mr. Rakesh Bhatkar for respondent.
                                   ----
                                         CORAM : K.R.SHRIRAM, J.

                                         DATE    : 5th JANUARY 2021
ORAL JUDGMENT :


1                  This is an appeal impugning an order and judgment dated

9th March 2005 passed by the Judicial Magistrate First Class, Deorukh,

Ratnagiri, acquitting accused of offences punishable under Sections 354

(Assault or criminal force to woman with intent to outrage her modesty ) and

506 (2) of Indian Penal Code (IPC).

2 It is prosecution's case that on 26th February 2004 at about

3.00 p.m. while Deepali (PW-1) was alone in her house, accused went to the

house and asked PW-1 to give him a glass of water. When PW-1 went inside

to get water and was taking the water out of the mud pot, accused hugged

her from behind. PW-1 tried to shout and escape from his clutches but

accused closed her mouth and pulled her back. PW-1 pushed accused and

escaped from his clutches raising a hue and cry. Thereafter, PW-1 came out of

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the house but accused continued to sit inside the house. When accused left

the house, PW-1 locked the house and went to the market for buying

kerosene. At that time, accused is supposed to have followed her and tried to

hush her up by offering Rs.10/- to her, which PW-1 refused. It is alleged that

accused threatened PW-1 with dire consequence if she told about the

incident to her parents. PW-1 got frightened and kept quite. On 29 th February

2004, when PW-1's mother, complainant (PW-2) found PW-1 unnaturally

silent, she asked PW-1 as to what happened and PW-1 confided in her. PW-2,

therefore, lodged the FIR. Investigation commenced, chargesheet was filed

and charges were framed. Accused pleaded not guilty and claimed to be

tried. According to accused, since he refused to marry PW-1, PW-2 filed false

case against him.

3 To drive home the charge, prosecution has examined three

witnesses, viz., victim as PW-1, complainant and mother of PW-1 as PW-2

and the Investigating Officer as PW-3. Having considered the evidence, the

conduct of PW-1 appears to be rather strange. If accused has hugged her

from back and according to PW-1 she pushed accused and came out of the

house, I wonder why she went and stood under the jack fruit tree. According

to PW-1 accused was sitting inside the house when she came out. PW-1 does

not lock the house when she left the house so that accused could have been

trapped inside the house. Instead PW-1 simply stood under the tree and

locked the house after accused left the house. PW-1 also states that

immediately after the incident she went to market to buy kerosene and

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accused followed her and offered Rs.10/- and asked her not to disclose the

incident to anyone. It is to be noted that the incident happened during the

day time and for PW-1 to go to the ration shop to buy kerosene she had to

pass through one Pant Joshi Mangal Karyala where her parents were

working. PW-1 does not go to the place of work of her parents and report the

incident to her parents even though she went passing the Pant Joshi Mangal

Karyala to buy kerosene.

4 PW-1 says she was mentally disturbed but admits that she was

going to school from 26th February 2004 to 29th February 2004 with her

friends. PW-1 does not disclose anything to her friends either. Importantly,

PW-1 in her cross examination admits that before giving evidence she had a

discussion with her mother about the manner in which she should depose in

the Court. PW-1 also states that one Sujata Shinde and Rajeshri More had

witnessed the incident from the window of her house but they are not called

to give evidence. Therefore, the evidence of PW-1 cannot be relied upon.

5 PW-2 is a hearsay witness. Moreover, according to PW-2, PW-1

narrated the incident to her on 29 th February 2004 at 4.00 p.m. but the FIR

has been lodged on 1st March 2004 at about 8.30 p.m. Though prosecution

has explained the delay between 26 th February 2004 to 29th February 2004,

there is no explanation for the delay between 29 th February 2004 to 1st March

2004. In the circumstances, in my view, the Trial Court has correctly

acquitted accused.

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6                  The Apex Court in Ghurey Lal V/s. State of U.P. 1 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:

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";

1. (2008) 10 SCC 450

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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 courts must rule in favour of the accused.

7 The Apex Court in many other judgments including Murlidhar &

Ors. V/s. 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.

2. (2014) 5 SCC 730

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The Apex Court in Ramesh Babulal Doshi V/s. State of Gujarat 3

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.

8 I have perused the impugned judgment, considered the evidence

and also heard Ms. Malhotra, learned APP. I do not find anything palpably

wrong, manifestly erroneous or demonstrably unsustainable in the impugned

judgment. From the evidence available on record, there is nothing to

substantiate the charge leveled against accused.

9 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 he is proved guilty by a

competent court of law. Secondly, accused having secured acquittal, the

presumption of his innocence is further reinforced, reaffirmed and

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

observed that the prosecution had failed to prove its case.

3. 1996 SCC (cri) 972

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             10               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

acquittal, in my view, cannot be interfered with. I cannot find any fault with

the judgment of the Trial Court.

             11               Appeal dismissed.



                                                                    (K.R. SHRIRAM, J.)
           Digitally signed
           by Gauri A.
           Gaekwad
Gauri A.   Date:
Gaekwad    2021.01.07
           16:45:00
           +0530




             Gauri Gaekwad