State Of Gujarat vs Ismail Ibrahim Motaji
2022 Latest Caselaw 8969 Guj

     R/CR.A/391/2008                                JUDGMENT DATED: 11/10/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 391 of 2008


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

==========================================================

1     Whether Reporters of Local Papers may be allowed                   No
      to see the judgment ?

2     To be referred to the Reporter or not ?                            No

3     Whether their Lordships wish to see the fair copy                  No
      of the judgment ?

4     Whether this case involves a substantial question                  No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
                              STATE OF GUJARAT
                                    Versus
                       ISMAIL IBRAHIM MOTAJI & 4 other(s)
==========================================================
Appearance:
MR. L.B.DABHI, APP for the Appellant(s) No. 1
MR KIRTIDEV R DAVE(3267) for the Opponent(s)/Respondent(s) No.
1,2,3,4,5
MR RAHUL K DAVE(3978) for the Opponent(s)/Respondent(s) No. 1,2,3,4,5
==========================================================

    CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                                Date : 11/10/2022

                               ORAL JUDGMENT

1. The present Appeal is preferred by the Appellant - State of

Gujarat under Section 378(1)(3) of the Criminal procedure Code,

R/CR.A/391/2008 JUDGMENT DATED: 11/10/2022

1973, against the impugned judgment and order passed in Sessions

Case No. 111 of 2006 by the learned Additional Sessions Judge, 2nd

Fast Track Court, Bharuch dated 13.4.2007, recording acquittal of

the Respondents / Original Accused Persons for the charges under

Sections 498(A), 306, r/w 114 of The Indian Penal Code.

2. The brief facts of the prosecution case is that the complainant

Alibhai Rahimbhai Malek is residing with his sons and wife

Hasinaben. The marriage of his daughter Saidabanu took place with

one Basirbhai Ismailbhai Malek (A-3) of village Kora nine years prior

to the incident. After marriage Saidabanu started leaving in a joint

family of the accused no.3 comprising of father-in-law Ismail

Ibrahimbhai, Mother-in-law Bibiben, elder brother in law Usmanbhai

and elder sister-in-law Anishaben. Fifteen days prior to the filing of

the complaint, younger sister-in-law of Saidabanu (the deceased)

also started leaving in her family. Initially, the marriage life of

Saidabanu run smoothly. However, for last two years, the marriage

life of Saidabanu got disturbed and all her in laws i.e. mother-in-law,

father-in-law, elder brother-in-law and sister-in-law, elder brother-in-

law and sister-in-law Salma started taunting Saidabanu and they

were also harassing Saidabanu saying that she did not bring

anything from her parental house. Moreover, they quarreled with

Saidabanu in trivial matters and as such they were harassing her

saying that she used to keep more oil in food she was making. It is

R/CR.A/391/2008 JUDGMENT DATED: 11/10/2022

further the prosecution case that in-laws of deceased Saidabanu

were instigating her husband Basir to ask Saidabanu to get money

from her parental house and if she (Saidabanu) refused, they were

asking Basir to beat Saidabanu and were doing so. These facts were

informed to the complainant as and when Saidabanu used to come

to her parental house. Therefore, for so many times the

complainant had given money to Saidabanu to give the same to her

husband and the said amount reached up to Rs.40,000/-. However,

such help which was given from the complainant to accused did not

stop harassment and mental and physical torture being meted out

to the deceased at the hands of the accused. The further

prosecution case is that on 7.7.2005, Rafit i.e. son of the

complainant received phone call from Saidabanu who was

complaining on phone that her in laws, in collusion with each other,

started harassing her mentally and physically and also quarreling with her.

She further informed Rafik on phone that now she is fed up with such

problems and therefore, she would come on Saturday at her parental home

along with her children. Rafik, in turn, informed this fact to the complainant. It

is the further prosecution case that on 8.7.2005, the complainant returned

from his field at about 12:15 hours. At that time, Rafik informed the

complainant that he received message from Ismail Ibrahim Patel that he

(Ismail) was at Jambusar since Saidabanu was admitted in Jambusar General

Hospital as she consumed poisonous medicine. Therefore, the complainant

made arrangement of Rs.10,000/ and went to Jambusar from where his

R/CR.A/391/2008 JUDGMENT DATED: 11/10/2022

nephew Firoz also the complainant took Rs.4000/- and thereafter he

went to hospital. The complainant had seen Saidabanu in serious

condition and she could not even speak anything. At that time, the

relatives of the complainant have also approached the complainant.

The complainant had deposited Rs.5000/- in hospital as advance

amount. However, no one was present when Saidabanu was

admitted in hospital except her husband Basir, accused no.3. Till

morning of 9.7.2005 as Saidabanu did not become conscious, Dr.

Tusharbhai Patel advised to transfer Saidabanu to either Vadodara

or Surat hospital for further treatment. At that time, the brother in

law of the complainant viz. Hanifbhai also came there and they

decided to bring Saidabanu to Surat for further treatment for which

they also got necessary chitthi and admitted Saidabanu in the

hospital of one Dr. Malviya. The son-in-law of the complainant i.e.

Basir also accompanied them to Surat and he was present in the

hospital. However, on 15.7.2005, Basir went to his village. On

16.7.2005, at about 4:00 pm Saidabanu during the treatment died.

Therefore, on the same day i.e. on 16.7.2005 the complainant gave

his complaint to Shri G.K.Chaudhry, Assistant Police Commissioner,

'D' Division and Incharge 'C' Division, Surat against the accused

persons.

3. Upon such FIR being filed, investigation started and the

Investigating Officer recorded statements of as many as 12

R/CR.A/391/2008 JUDGMENT DATED: 11/10/2022

witnesses and produced number of documentary evidence, and

after completion of the investigation, Charge-sheet was filed against

the accused persons for the offences in question. The case was

committed to the Sessions Court and the learned Sessions Judge

framed the Charge. Since the accused did not plead guilty, trial was

proceeded against the accused. Vide impugned judgment and order

dated 13.4.2007, the learned Sessions Judge acquitted the accused

persons. Being aggrieved by the same, the State has preferred the

present appeal.

4. Heard, learned APP Mr. L.B.Dabhi for the appellant - State.

And learned Advocate Mr. Chintan Dave for the Respondents /

Original Accused. The Appeal was Admitted by this Court on

5.2.2008.

5. The learned Additional Public Prosecutor Mr. L.B.Dabhi has

mainly contended that the learned trial Judge has erred in holding

that the prosecution has failed to prove its case beyond reasonable

doubt. The learned APP 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 APP 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

R/CR.A/391/2008 JUDGMENT DATED: 11/10/2022

respondents - original accused.

6. Learned APP Mr. L.B.Dabhi has referred to the judgment and

order as well as the testimony of number of witnesses and also the

documentary evidence. Learned APP has submitted that the

judgment and order of acquittal passed by the learned Judge is

contrary to law, evidence on record and principles of natural justice,

hence the same deserves to be quashed and set aside by this

Hon'ble Court. It is further contended that the judgment and order

of acquittal passed by the Court of learned Judge is based on

inference not warranted by facts of the case and also on

presumption not permitted by law and that the learned Judge ought

to have seen that there are direct and indirect evidence connecting

Respondent with crime produced in this case. In spite of the fact,

learned Judge without appreciating oral as well as documentary

evidence on record of the case, straight way arrived at the

conclusion that the prosecution has failed to prove its case beyond

reasonable doubt for the alleged offence under Sections 498(A),

306 r/w Section 114 of the Indian Penal Code.

7. Learned APP has further submitted that the learned Sessions

Judge has failed to appreciate that prosecution has proved its case

beyond reasonable doubt.

R/CR.A/391/2008 JUDGMENT DATED: 11/10/2022

8. Learned APP has therefore submitted that the learned Judge

has committed error in giving undue weightage to minor omissions

and contradictions in the evidence of prosecution witnesses and

therefore the reasons given by the learned Judge while appreciating

the evidence as well as while acquitting the accused are improper,

perverse and bad in law. Therefore, it is submitted that the present

Appeal may be allowed.

9. In view of the submissions made by the learned APP Mr.

L.B.Dabhi for the Appellant - State of Gujarat, it is required to be

considered whether the impugned judgment and order can be

sustained or not.

10. Having heard the arguments advanced by the learned APP Mr.

L.B.Dabhi for the Appellant - State and learned Advocate Mr.

Chintan Dave for the Respondents / Original Accused, before we

advert to the merits of the case, it would be worthwhile to refer to

the scope of this Appeal.

10.1 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

R/CR.A/391/2008 JUDGMENT DATED: 11/10/2022

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.

10.2 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.

10.3 Merely because two views are possible, the Court of appeal

would not take the view which would upset the judgment 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 appellate Court, in such

R/CR.A/391/2008 JUDGMENT DATED: 11/10/2022

circumstances, to 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.

11. 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".

12. 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

R/CR.A/391/2008 JUDGMENT DATED: 11/10/2022

principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 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)

R/CR.A/391/2008 JUDGMENT DATED: 11/10/2022

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 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

R/CR.A/391/2008 JUDGMENT DATED: 11/10/2022

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

R/CR.A/391/2008 JUDGMENT DATED: 11/10/2022

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 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;

R/CR.A/391/2008 JUDGMENT DATED: 11/10/2022

(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 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:






 R/CR.A/391/2008                                           JUDGMENT DATED: 11/10/2022

"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

R/CR.A/391/2008 JUDGMENT DATED: 11/10/2022

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 reappreciation of the entire evidence on record. However, the 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

R/CR.A/391/2008 JUDGMENT DATED: 11/10/2022

guilty on reappreciation 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 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

R/CR.A/391/2008 JUDGMENT DATED: 11/10/2022

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

R/CR.A/391/2008 JUDGMENT DATED: 11/10/2022

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 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. 809-

10) "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.

R/CR.A/391/2008 JUDGMENT DATED: 11/10/2022

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.

R/CR.A/391/2008 JUDGMENT DATED: 11/10/2022

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)."

13. To substantiate the charges levelled against the Accused

Persons, the prosecution has testified PW-1 - Alibhai Rahimbhai at

Exh. 16. He appears to the original informant / complainant. He

tried to depose in accordance with his complaint which is marked at

13/01. But in cross-examination he has categorically admitted that

when his daughter was unconscious, at that time police has neither

inquired anything nor the statement was recorded. Even the

relatives and he himself has not stated about anything for complaint

and till the death of her deceased daughter, they have not preferred

to file the complaint. On the contrary, after meeting with the family

members they have decided to file the complaint. Therefore the

learned Sessions Judge has rightly arrived at the decision that the

complaint appears to be an afterthought. Further, it is to be noted

that there is no dying declaration on record.

R/CR.A/391/2008 JUDGMENT DATED: 11/10/2022

13.1 The prosecution has testified PW-2 Hasinaben Alibhai Malek at

Exh.36. She appears to be the mother of the deceased daughter.

She tried to depose in accordance with the police statement, but in

cross-examination, she has admitted that she has no knowledge

about the complaint registered at Jambusar Police Station. It is also

admitted that till the death of daughter Saidabanu no police

complaint was filed. It is also admitted that after the death of

Saidabanu, their family members and she herself, including her

brothers decided to file the complaint. It is also admitted in the

cross-examination that in the festivals they used to have a

gathering prior to the death of Saidabanu. It is also admitted that

there were cordial relations with the accused persons. It is also

admitted that when Saidabanu admitted in the Surat Hospital, she

has not chosen to inform about the poisonous medicine taken by the

deceased person. It is also not stated that mother-in-law and

sister-in-law of the deceased daughter has given the poisonous

medicine.

13.2 The prosecution has testified PW-3 Ishmailbhai Ibrahimbhai at

Exh.37. He appears to be the maternal uncle of deceased

Saidabanu. In cross-examination he has admitted that at no point of

time Saidabanu has informed about the demand of money by her

father in law and mother in law. Even the aspect of cruelty is also

not informed by the deceased to the present witness who is

R/CR.A/391/2008 JUDGMENT DATED: 11/10/2022

maternal uncle (mama). Upon such premises also the learned

Sessions Judge has rightly appreciated the evidence adduced by the

prosecution that the same is beyond reasonable doubt so longer as

the charges levelled against the accused person is concerned.

13.3 The prosecution has testified PW-4 Rafikbhai Alibhai Malek at

Exh.38, who is the younger brother of Saidabanu. He has admitted

that in the police station he has not stated about the demand of

money by in laws of the deceased sister and the deceased sister

was having such harassment.

13.4 The prosecution has testified PW-5 Ratnabhai Mithabhai at

Exh.39. He is known to Bhashirbhai but he turned hostile and not

supported the case of the prosecution case.

13.5 The prosecution has testified PW-6 Hanifbhai Hattubhai Patel

at Exh.40. He appears to be the Divisional Engineer in the

Telephone Department. In cross-examination he has admitted that

he came to know on the basis of the telephonic message.

13.6 The prosecution has testified PW-7 Dr. Arvindbhai K. Malviya

at Exh.41. He appears to be the Doctor at Malviya Hospital Surat.

In cross-examination he has admitted that none has given history

before him who has given the poisonous medicine to the deceased

R/CR.A/391/2008 JUDGMENT DATED: 11/10/2022

daughter.

13.7 The prosecution has testified PW-8 Dr. Balubhai R. Panchani

at Exh.44. He appears to be the Medical Officer at the respective

time. He has conducted the postmortem of the deceased person.

He has stated that the substance like orange was found which was

taken as liquid prior to approximately six hours of the death of the

deceased.

13.8 The prosecution has testified PW-9 Prakashbhai Dhirajlal

Pandya at Exh.46. He appears to be Scientific Officer in the FSL

Surat. He has admitted that in the letter of FSL Surat it is written

that due to heavy flood in Surat, the samples were destroyed as it

were taken in time by the polcie, and therefore the muddamal is

destroyed and that the defence counsel has not chosen to cross-

examine him.

13.9 The prosecution has examined PW-10 Kanubhai Ramsingbhai

at Exh. 48. He is a Head Constable and has initiated the preliminary

investigation for which he has tendered Exh.50. He is not able to

explain in the cross-examination that despite the registration of the

offence, the primary investigation was handed over to ASI Sanatsinh

Manabhai.

R/CR.A/391/2008 JUDGMENT DATED: 11/10/2022

13.10 The prosecution has examined PW-11 Sanatsinh

Manabhai at Exh. 51. He appears to be ASI at the respective time

before whom the muddamal box was seized.

13.11 The prosecution has testified PW-12 Bahadurbhai

Mohanbhai Vasava at Exh.52. He appears to be PSI as well as the

Investigation Officer at the relevant time, who has produced the

charge sheet. He has admitted that he has not taken any statement

of the persons residing near the house of the deceased person.

14. Upon such premises, in the opinion of this Court, the learned

Sessions Judge has rightly arrived at the acquittal of the accused

persons.

15. Thus, on re-appreciation and reevaluation of the oral as well

as documentary evidence on record, as referred to herein above, it

transpires that there are contradictions and omissions in the

evidence of the prosecution witnesses. The learned trial Judge has

observed that on considering the evidence on record there appears

no trustworthy evidence on record to prove the charge levelled

against the accused and the prosecution has failed to bring home

the charges levelled against the accused inasmuch as the

ingredients of the offence alleged are not fulfilled. This Court has

gone through in detail the impugned judgment and order and found

R/CR.A/391/2008 JUDGMENT DATED: 11/10/2022

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

does not call for any interference at the hands of this Court.

16. 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 13.4.2007, passed

in Sessions Case No. 111 of 2006 by the learned Additional Sessions

Judge, 2nd Fast Track Court, Bharuch, recording the acquittal of the

Respondents / Accused Persons is confirmed. Bail bond, if any, shall

stand cancelled. R&P, if received, be transmitted back forthwith.

(A. C. JOSHI,J) 52 / J.N.W