The State Of Maharashtra vs Umesh Sitaram Wagh And Anr
2021 Latest Caselaw 32 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CRIMINAL APPELLATE JURISDICTION
                         CRIMINAL APPEAL NO.1063 OF 2007


The State of Maharashtra         )    ..Appellant

      V/s.
1 Umesh Sitaram Wagh             )
Age 23 years                     )

2 Janakibai Sitaram Wagh         )
Age 65 years                     )
Both R/o H. No.4220              )
Kalaram Mandir, Panchawati,      )
Nashik                           )    ..Respondents


Mrs. Anamika Malhotra, APP for State
None for Respondents

                                 CORAM : K.R.SHRIRAM, J.

DATED : 4th JANUARY 2021

ORAL JUDGMENT

1 This is an appeal impugning an order and judgment dated 25-10-2005

passed by Learned VI Adhoc Assistant Sessions Judge, Nashik, acquitting the

accused for the offence punishable under Section 498A ( Husband or relative

of husband of a woman subjecting her to cruelty) and Section 306

(Abetment of suicide) read with Section 34 (Acts done by several persons in

furtherance of common intention) of the Indian Penal Code.

2 Since accused no.-2 died on 2-5-2013 as recorded in the order dated

19-3-2015, the appeal survives only against accused no.1.

3       With the assistance of the Learned APP, I have considered the


    Meera Jadhav
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evidence, documents and the impugned judgment. Admittedly, there is a

dying declaration, in which, deceased Vandana, who was married to accused

no.1 has stated that she sustained burn injury when she was boiling milk in

a stove. The dying declaration of deceased Vandana shows that Vandana

stated before the Special Judicial Magistrate that due to flames from stove

while boiling the milk her dress caught fire and she got burnt. Not only this

Vandana has further stated before the Special Judicial Magistrate that she

shouted loudly as soon as she was enveloped in fire and at that time her

husband extinguished the fire by wrapping her with bed sheet and

immediately moved her for treatment to Sahyadri Hospital. To a specific

query posed by the Special Judicial Magistrate, Vandana replied that she has

no complaint against anybody. The dying declaration at Exhibit 16 cannot

be faulted for the procedure followed. There is also an endorsement of the

Doctor concerned stating that patient was fully conscious and able to talk

before giving the statement and she was fully conscious even after giving the

statement. Both these endorsements prove that the dying declaration

recorded by the Special Judicial Magistrate upon the cause of getting burnt,

reflects Vandana's voluntary statement made without any pressure and in

full consciousness.

4 Even in the statement recorded on 22-1-2004 by the police of

deceased Vandana shows that the statement was recorded by PSI of

Panchwati Police Station in Sahyadri Hospital itself. There is an

endorsement of the Doctor concerned on the said statement that it was

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recorded at 12.10 a.m. (midnight) on 22-1-2004 and patient was conscious

and oriented to give the statement. Even in this statement Vandana has

stated the same cause of burn and made no allegations against anybody. On

this ground alone I shall not find fault with the conclusions arrived at by the

Trial Court.

5 Moreover, there are material contradictions in the evidence of the

complainant in as much as complainant has stated in the complaint that

Vandana poured kerosine on herself. While in the evidence complainant

states that Vandana told her that accused no.1 poured kerosine on her. In

the testimony, complainant states Vandana told her that accused no.1 said

that he will provide her treatment in private hospital provided she does not

tell his name to anybody. But this does not appear in the complaint. Even

the spot panchnama does not indicate anything suspicious. If Vandana had

poured kerosine on herself or accused no.1 had poured kerosine on her,

kerosine would have split in the room and same would have been noticed

and recorded in the panchnama. Nothing is mentioned.

6 In the cross-examination, complainant has admitted that it was

accused no.1 who provided treatment to Vandana and incurred expenses of

Rs.35,000/-, but immediately states that she does not know anything about

it.

7 There are various other contradictions and omissions mentioned in

the judgment which for the sake of brevity I am not reproducing. Suffice to

say I agree with the findings of the Trial Court.

      Meera Jadhav
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8                  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 Meera Jadhav 5/7 19.apeal-1063-07.doc

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.

9 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.

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

2. (2014) 5 SCC 730 Meera Jadhav 6/7 19.apeal-1063-07.doc

Gujarat3 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.

10 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 the accused.

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

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

the 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, the accused having secured acquittal,

the presumption of their innocence is further reinforced, reaffirmed and

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

observed that the prosecution had failed to prove its case.

12 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

3. 1996 SCC (cri) 972 Meera Jadhav 7/7 19.apeal-1063-07.doc

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

the judgment of the Trial Court.

           13                   Appeal dismissed.




                                                             (K.R. SHRIRAM, J.)
         Digitally signed
Meera    by Meera M.
         Jadhav
M.       Date:
         2021.01.08
Jadhav   11:25:36
         +0530




                 Meera Jadhav