The State Of Gujarat vs Amrutbhai Monghabhai Parmar
2022 Latest Caselaw 5906 Guj

     R/CR.A/402/2006                               JUDGMENT DATED: 05/07/2022




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/CRIMINAL APPEAL NO. 402 of 2006

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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      Whether Reporters of Local              Papers   may be
 1                                                                         NO
      allowed to see the judgment ?

 2 To be referred to the Reporter or not ?                                YES

      Whether their Lordships wish to see the fair copy
 3                                                                         NO
      of the judgment ?
   Whether this case involves a substantial question
 4 of law as to the interpretation of the Constitution                     NO
   of India or any order made thereunder ?

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                    THE STATE OF GUJARAT
                             Versus
        AMRUTBHAI MONGHABHAI PARMAR & 3 other(s)
=======================================
Appearance:
MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR BHAGYODAYA MISHRA(2971) for the
Opponent(s)/Respondent(s) No. 1,2,3,4
=======================================

 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                          Date : 05/07/2022

                           ORAL JUDGMENT

1. Present appeal has been filed by the appellant - State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 15.12.2005, passed in Sessions Case No. 75 of 2005 by the learned Presiding Officer, 4th Fast Track Court, Sabarkantha at Himatnagar, recording the

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acquittal.

2. Brief facts are that on 16.11.2004 at about 8:00 a.m. deceased younger brother of the complainant namely Jayeshbhai was going to the field for fetching grass at that time, his neighbours Amrutbhai Monghabhai Parmar, Vinodbhai Amrutbhai Parmar, Rajubhai Amrutbhai and Ramanbhai Monghabhai Parmar

- respondents herein - original accused were standing on the road, asked Jayeshbhai as to who had written chit (letter) to Dharmishtha to which, Jayeshbhai denied of having any information. Hence, the respondents - original accused got infuriated and started giving filthy abuses to Jayeshbhai and thereafter, gave kick and fist blows. At that time, complainant Ishwarbhai and his uncle Kantibhai Becharbhai intervened and got relieved Jayeshbhai, however, while leaving, the respondents allegedly, threatened to kill him. Afterwards, in the evening, when complainant - Ishwarbhai asked deceased Jayeshbhai to join him to the field, Jayeshbhai told him that he would join him later, after going to the temple. Thereafter, when the complainant returned home at about 6:00 p.m., he was informed that there was a call from the hospital and that Jayeshbhai might have consumed poision and was serious and hence, the complainant rushed to Talod Government Hospital and by the time he reached there, Jayeshbhai had died. Hence, the complainant lodged the complaint against the respondents for the offences punishable under Sections 306, 323, 504, 506(2) and 114 of the Indian Penal Code, 1860 (herein after referred to as "the IPC").

2.1 Upon such FIR being filed, investigation started and the Investigating Officer recorded statements of as many as 13 witnesses and produced certain documentary evidence. The

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accused have also examined one witness - Dharmishtha @ Chhaya Pashabhai Parmar at Exh. 43. After completion of the investigation, Charge-sheet was filed against the accused persons for the offence in question. The case was committed to the Sessions Court and the learned Judge trial Judge framed the Charge. Since the accused did not plead guilty, trial was proceeded against the accused. Vide impugned judgment and order dated 15.12.2005, the learned trial Judge acquitted the accused. Being aggrieved by the same, the State has preferred the present appeal.

3. Heard, Ms. Jirga Jhaveri, learned Additional Public Prosecutor for the appellant - State and Mr. Bhagyoday Mishra, learned advocate for the respondents - accused.

3.1 The learned Additional Public Prosecutor for the appellant - State has mainly contended that the learned trial Judge has erred in holding that the prosecution has failed to prove its case beyond reasonable doubt. She submitted that the impugned judgment of the trial Court is based on presumptions and inferences and thereby, it is against the facts and the evidence on record. The learned Additional Public Prosecutor further submitted that the learned trial Judge has failed to appreciate the evidence on record in its true and proper perspective and thereby, has erred in recording the acquittal of the respondents - accused.

3.2 The learned Additional Public Prosecutor further contended that the learned trial Judge has failed to appreciate the evidence of complainant PW-5 Ishwarbhai Dhulabhai Solanki, Exh. 23, who has supported the case of the prosecution in toto. He has stated that on the date of incident, in the morning, when the deceased

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was going to the field for fetching the grass, the accused persons intervened and showing a chit (letter), asked the deceased as to who had written that chit to Dharmishtha and when the deceased denied of having any information, they abused him and also gave fist and kick blows. Further, when complainant and his uncle Kantibhai intervened, the accused left the place threatening the deceased to kill saying he would not see the evening. The learned APP submitted that thus, in the presence of the complainant, the accused persons threatened the deceased to do him to death, which led the deceased to commit suicide, however, the learned trial Judge has failed to appreciate such a crucial aspect of the matter.

3.3 The learned APP further took this Court to the deposition of PW-6 Kantibhai Becharbhai Solanki, Exh. 26 and submitted that this witness has also supported the case of the prosecution and has clearly stated in his deposition that in his presence, the accused persons had threatened the deceased to kill him and hence, his nephew had committed suicide by consuming poision. However, the learned trial Judge did not believe the deposition of this witness and thereby, has committed a grave error.

3.4 It is submitted that the learned trial Judge has erred in holding that there are several omissions and contradictions in the evidence on record.

3.5 The learned Additional Public Prosecutor, taking this Court through the oral as well as the documentary evidence on record, submitted that though the prosecution has proved the case against the accused beyond reasonable doubt, the learned trial Judge has not properly appreciated the evidence on record and thereby, has committed an error in recording acquittal. It is

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submitted that all the ingredients of the offence alleged had been proved beyond reasonable doubt, however, the learned trial Judge did not believe the same and therefore, the impugned judgment and order suffers from material illegality, perversity and contrary to the facts and evidence on record.

3.6 Thus, the learned Additional Public Prosecutor has submitted that although cogent and material evidence had been produced by the prosecution and the case was proved beyond reasonable doubt, the trial Court has committed a grave error in acquitting the accused and accordingly, it is urged that present appeal may be allowed by quashing and setting aside the impugned judgment and order of acquittal.

4. Per contra, learned advocate Mr. Bhagyoday Mishra for the respondents - accused, while supporting the impugned judgment and order of the trial Court, submitted that the learned trial Judge has, after due and proper appreciation and evaluation of the evidence on record, has come to such a conclusion and has acquitted the accused, which is just and proper. He submitted that it is trite law that if two views are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality.

4.1 The learned advocate for the respondents - accused submitted that the ingredients of the offence alleged against the accused are not proved by the prosecution beyond reasonable doubt and there were several contradictions and omissions in the

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evidence on record and therefore, the learned trial Judge has rightly acquitted the accused of the charges levelled against them.

4.2 It is submitted that most of the prosecution witnesses are related to each other and are interested witness besides, some of the witnesses have not supported the case of the prosecution and declared hostile. Besides, the chit in question, which was produced at Mark 25/1 is not exhibited and hence, the learned trial Judge has rightly not considered the same in evidence.

4.3 The learned advocate for the respondents - accused further submitted that the learned trial Judge has rightly acquitted the accused as the prosecution has failed to bring home the charge against the accused. Accordingly, it is requested that no interference is required at the hands of this Court and eventually, it is urged that the present appeal may be dismissed.

4.4 In support, the learned advocate for the respondents - accused has relied upon following decisions:

i) Bhagwatilal alias Bhagatram v. State of M.P., AIRONLINE 2019 MP 631;

ii) Mankamma V. State of Kerala, AIR 2010 SC 499;

iii) State represented by PSI, Udupi Town P.S. v.

Tushar Kotian, AIRONLINE 2019 KAR 2719;

iv) Sanju alias Sanjay Singh Sengar v. State of M.P., 2002 AIR SCW 2035;

v) Kishor Shankar Bhoir v. State of Maharashtra, AIRONLINE 2019 BOM 1393;

vi) State of Gujarat v. Mansukh alias Arvind Alabhai Boricha, AIRONLINE 2019 GUJ 501;

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vii) M. Arjunan v. State, AIRONLINE 2018 SC 846.

5. Heard the learned advocates for the respective parties and gone through the impugned judgment and order of the trial Court as well as the material on record.

5.1 Before adverting to the facts of the case, it would be worthwhile to refer to the scope in acquittal appeals. It is well settled by catena of decisions that an appellate Court has full power to review, re-appreciate and consider the evidence upon which the order of acquittal is founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice in favour of the accused, firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court.

5.2 Further, if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrive at would not be arrived at by any reasonable person, and therefore, the decision is to be characterized as perverse.

5.3 Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment

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delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. That the duty is cast upon the the appellate Court, in such circumstances, re-appreciate the evidence to arrive to just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged.

5.4 In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, (2019) 2 SCC 752, the Apex Court has observed that, "The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court".

5.5 Yet in another decision in Chaman Lal v. The State of Himachal Pradesh, rendered in Criminal Appeal No. 1229 of 2017 on 03.12.2020, 2020 SCC OnLine SC 988 the Apex Court has observed as under:

"9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs

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12 to 19, it is observed and held as under:

12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445)

13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan

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Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755)

15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42)

"(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate

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court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."

18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;

(ii) The High Court's conclusions are contrary to evidence and documents on record;

(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

(v) This Court must always give proper weight and consideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal." A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.

19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the

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order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."

9.2 When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under:

"20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4 SCC 635, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v.

CCE 1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P (2009) 10 SCC

636)." (emphasis supplied)

9.3 It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.

9.4 In the recent decision of Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436, this Court again had an occasion to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under:

"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on re-

appreciation of the entire evidence on record. However, the

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High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p.

233)

"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case."

31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on re- appreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court.

While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416)

"8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High

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Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case."

31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly

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erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.

31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under: (AIR pp. 80910) "5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 Cr.P.C came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.

It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.

If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.

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31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."

(emphasis supplied)."

6. In the aforesaid backdrop, if the case on hand is considered, it is the case of the prosecution that deceased Jayeshbhai was beaten by the accused asking as to who had written letter to Dharmishtha and on intervention by the complainant and his uncle, they left the place, however, threatened the deceased to kill saying he would not see the evening. Subsequently, on the same day, the complainant asked the deceased to join him to the field, however, the deceased told him that he would come to the field later, after visiting temple. Thereafter, in the evening, when the complainant returned home, he received information about deceased having been admitted in the hospital as he had consumed the poision, however, by the time, the complainant reached the hospital, the deceased had died and accordingly, the FIR in question came to be registered against the accused persons.

6.1 In this regard, if the evidence on record is referred to, PW-1 Dr. Satishkumar K. Vyas, Exh. 14 who had performed the post mortem of the deceased, has stated in his deposition, more particularly, in his cross-examination that there were no internal or external injury marks on the body of the deceased. The Court has also referred to the Post Mortem Report, Exh. 15 of the deceased, which is suggestive of the aforesaid aspect. At this juncture, it may be noted that as per the case of the prosecution, on the same day, in the morning, the deceased was beaten by the accused persons with fist and kick blows and in the evening,

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the deceased committed suicide by consuming poisonous drug, however, no injury marks were found on the body of the deceased. Further, if the deposition of PW-2 Popatbhai Gabhabhai Chavda, Exh. 17 is referred to, he was the panch witness. This witness has deposed to state that police had shown the dead body of the deceased to him and on seeing the same, he did not find any injury marks on the body of the deceased.

6.2 Further, if the deposition of complainant - PW-5 Ishwarbhai Dhulabhai Solanki, Exh. 23 is referred to, in his cross-examination he has admitted that witnesses Kantibhai Becharbhai, Babuben Dhulabhai, Kailashbhai Ishwarbhai, Mukeshbhai Kantibhai, Kanubhai Ranchhodbhai, Keshabhai Bababhai, Khemabhai all are his close relatives. He has further deposed that Kantibhai Somabhai, Pravinbhai Laxmanbhai, Kalabhai Ramabhai Nadiya are residing nearby to his home. This witness has admitted that he had not approached the nearby police station and had spent whole night sitting in the hospital only. This witness has further stated in his cross-examination that the accused had not shown the chit (letter) - Mark 25/1 to his brother Jayesh. He has denied the fact of accused persons having asked him to rebuke the deceased for writing such a letter. He has further stated that he did not know as to whether the said chit (letter) was kept by Amrutbhai. He has admitted that, in his complaint, Exh. 24, he had narrated that his brother Jayesh (deceased) had written the letter to Dharmishtha. Thus, on one hand, this witness himself denies of accused persons having shown such a letter (chit) to his deceased brother and on the other hand, he narrates in the complaint that his brother Jayesh had written letter to Dharmishtha. Further, there are several improvements in his deposition. It is pertinent to note that the chit (letter) in question, produced at Mark 25/1 is not exhibited.

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6.3 Now, if the deposition of PW-6 Kantibhai Becharbhai Solanki, Exh. 26, who is the uncle of the complainant and the deceased, is referred to, he has stated that on account of harassment and threat by the accused, his nephew has committed suicide. However, in his cross-examination, he has admitted that in his statement before the police he had not stated that due to harassment of the accused persons, his nephew had committed suicide. Thus, in the deposition of this witness also, there are some improvements.

6.4 Further, PW-8 Kalusinh Takhatsinh Jhala, Exh. 28, who stated to have informed telephonically about the deceased having been admitted in the hospital and was serious, has not supported the case of the prosecution and declared hostile.

6.5 Besides, PW-9 Ibrahimbhai @ Kalubhai Rahemanbhai Vora, Exh. 29 has also not supported the case of the prosecution and declared hostile.

6.6 Thus, considering the above, it appears that there is nothing, worth the name, coming on record to show that the deceased had died on account of abetment / inducement / instigation by the accused persons. Further, the so-called chit (letter), alleged to have been written by the deceased to Dharmishtha, is not exhibited. Further, there is nothing on record to show that the said letter was sent for expert opinion and/or the handwriting in the same were compared with that of the deceased. Further, an in-depth scrutiny of the evidence shows nothing to substantiate the fact of any overt act that had led the deceased to take such an extreme step. On the contrary, a perusal of the deposition of defence witness - Dharmishtha @ Chhaya Pashabhai Parmar at Exh. 43 reveals that, only on the

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previous day of occurrence of the incident in question, the deceased tried to give her the chit (letter), Mark 25/1, which she denied to take and hence, the deceased asked her to take it else he would die by consuming poision. Besides, though independent witnesses were available, the investigating agency has recorded the statements of the witnesses, who mostly are the interested witnesses and are relatives of the deceased.

6.7 Thus, on re-appreciation and reevaluation of the oral and the documentary evidence on record, it transpires that the prosecution has failed to prove the case against the accused beyond reasonable doubt inasmuch as the ingredients of the offence alleged are not fulfilled. The Court has gone through in detail the impugned judgment and order and found that the learned trial Judge has meticulously considered the depositions of all the witnesses and came to the conclusion that the prosecution has failed to prove the case against the accused beyond reasonable doubt and in the considered opinion of this Court, the learned trial Judge has rightly come to such a conclusion, which do not call for any interference at the hands of this Court.

6.8 The Court has also gone through the decisions relied upon by the learned advocate for the respondents - accused. With a view not to burden this judgment, the Court deems it proper to only refer to the latest decision of the Apex Court in M. Arjunan (supra), wherein, the Court has held as under:

"8. The essential ingredients of the offence under Section 306 IPC are (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended

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by such act to instigate the deceased to commit suicide. Unless the ingredients/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 IPC."

6.9 In the case on hand also, as discussed herein above, there is nothing on record to show or suggest that the accused had instigated the deceased to commit suicide. Even, the so-called incident of deceased being beaten by the accused prior to his committing suicide, is also not proved as medical evidence does not support such an aspect of the matter as no injury on the body of the deceased, internally or externally, was found to suggest so. Further, the chit (letter) in question is not exhibited; the handwriting of the deceased are also not verified/compared; there appears to be some improvements in the version of the prosecution witnesses. Thus, from all this, it appears that the ingredients of the offence in question are not satisfied.

7. In view of the aforesaid discussion and observations, in the considered opinion of this Court, the prosecution has failed to bring home the charge against accused for want of sufficient material. The findings recorded by the learned trial Judge do not call for any interference. Resultantly, in fleri, the appeal fails and is dismissed accordingly. Impugned judgment and order dated 15.12.2005, passed in Sessions Case No. 75 of 2005 by the learned Presiding Officer, 4th Fast Track Court, Sabarkantha at Himatnagar, recording the acquittal is confirmed. Bail bonds, if any, shall stand cancelled. R&P, if received, be transmitted back forthwith.

[ A. C. Joshi, J. ] hiren