Gujarat High Court
State Of Gujarat vs Chaudhary Nathubhai ... on 21 October, 2022
Bench: Rajendra M. Sareen
R/CR.A/875/1994 CAV JUDGMENT DATED: 21/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 875 of 1994
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE S.H.VORA Sd/-
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Sd/-
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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
CHAUDHARY NATHUBHAI LAVJIBHAI(ABATED AS PER HON'BLE
COURT'S ORDER DTD.13/04/2022 & 9 other(s)
==========================================================
Appearance:
ABATED for the Opponent(s)/Respondent(s) No. 1,2,3,7,9
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No.
4,5,6,8
MR EKANT G AHUJA(5323) for the Opponent(s)/Respondent(s) No. 4,5,6,8
==========================================================
CORAM:HONOURABLE MR. JUSTICE S.H.VORA
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 21/10/2022
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE S.H.VORA)
R/CR.A/875/1994 CAV JUDGMENT DATED: 18/10/2022
1. Present Criminal Appeal is filed by the appellant -
State being aggrieved by the judgement and order passed by
the learned Additional Sessions Judge, Mehsana Camp at
Patan dated 11/5/1994 in Special (Atrocity) Case No.1 of
1994 whereby the learned Judge has acquitted all 9
accused / respondents from the offence punishable under
sections 147, 302 read with section 149 of Indian Penal
Code and under sections 3(1)(x) and 3(1)(i) of the Scheduled
Caste and Scheduled Tribes (Prevention of Atrocity) Act
(hereinafter referred to as "the Atrocity" Act) and under
section 135 of Gujarat Police Act.
2. Brief case of the prosecution is that the deceased
Rambhai Sendhabhai is resident of village Nortol and belong
to Scheduled Caste community. On the date of incident
when the deceased was at his home, at that time, accused
No.1 came to the house of the complainant - Gomtiben and
took away the deceased Rambhai Sendhabhai in a tractor
wherein other accused were also present. As per the case of
the prosecution, the deceased was beaten by the accused in
the tractor and thereafter he was handed over to the police
and the deceased died in the police custody. Subsequently,
complaint was lodged by the wife of the deceased in Kheralu
Police Station against the respondents / accused, which
was registered accordingly.
R/CR.A/875/1994 CAV JUDGMENT DATED: 18/10/2022
3. The investigation was set in motion and Police
Inspector N.G. Patel recorded statements of witnesses,
recovered weapons from the accused, panchnama of the
scene of offence and other panchnamas were prepared,
muddamal was sent to the FSL, as there was sufficient
against the accused, thereafter chargesheet was filed in the
court of learned Judicial Magistrate, First Class, Kheralu.
As the case was filed under section 302 and Atrocity Act
and the learned Magistrate having no jurisdiction to try the
case, the case was committed to the Sessions Court
accordingly.
4. The learned Special Judge before whom the case was
committed, framed the Charge vide Ex.20. The accused
denied the contents of the charge. As a result, trial was
conducted by the Special Judge. Further Statements of the
accused under section 313 of the Code of Criminal
Procedure were recorded in which accused / respondent
Nos.1, 2 and 5 raised defence that on the date of incident,
the deceased Rambhai Sendhabhai was in a drunken
condition and was unable to take care of himself. As such,
accused / respondent Nos.1, 2 and 5 took the deceased to
Kheralu Police Station and handed over the deceased to the
police station and complaint was filed by the accused /
respondent No.5 against the deceased. The deceased was
also taken to the Doctor by the police as he was booked in
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the case of Prohibition and thereafter he was taken to the
lock-up wherein he was found dead in the morning. It is
also defence of the accused that merely to get
compensation, after death the of the deceased, the
complaint is filed and the accused are falsely implicated in
the offence.
5. Upon recording of the Further Statements of the
accused, arguments were heard by the learned Special
Judge and thereafter trial was resulted into acquittal of all
the accused from the charges levelled against them, as a
result of which the present appeal is filed by the appellant -
State of Gujarat.
6. It is pertinent to note that during the pendency of this
appeal accused / respondent Nos.1, 2, 3, 7 and 9 have
expired and the present appeal survives qua the rest of the
accused / respondent Nos.4, 5, 6 and 8.
7. As the acquittal appeal is filed by the State against the
judgement and order of 9 accused for the offence under
sections 147, 302 read with section 149 of Indian Penal
Code and under section 3(1)(x) and 3(1((i) of the Prevention
of Atrocity Act and under section 135 of Gujarat Police Act,
notice was issued by the co-ordinate bench of this Court
upon the original complainant on 13/3/2020 and this
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Court issued notice vide order dated 3/10/2022 and
though the notice to the original complainant is served, the
original complainant has not appeared and hence in
absence of the original complainant, the appeal is argued by
learned APP for and on behalf of the appellant State.
8. Ms.C.M. Shah, learned APP has submitted that the
judgement and order passed by the learned Special Judge is
against the evidence on record and provision of law. The
learned Special Judge has not appreciated and accepted the
medical evidence which is corroborated by the version of the
eye witness. The learned Special Judge has also not
appreciated the evidence of the investigating officer in its
true and correct perspective. It is further submitted that
Special Court has committed a grave error in not believing
the deposition of the witnesses examined by the
prosecution. She has further submitted that the Special
Court has erred in acquitting the respondents - accused
from the charges levelled against him. She has further
argued that the prosecution has proved that the
respondents have committed the offence under sections
147, 302 read with section 149 of Indian Penal Code and
under sections 3(1)(x) and 3(1)(i) of Atrocity Act. She has
further argued that Special Court has acquitted the
respondents / accused merely on some minor
contradictions and omissions in the evidence of the
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witnesses. She has further argued that the trial court has
erred in not believing the evidence of the investigating officer
who had no reason to implicate the accused falsely in the
case. She has further argued that the offence punishable
under sections 147, 302 read with section 149 of Indian
Penal Code and under sections 3(1)(x) and 3(1)(i) of Atrocity
Act, is made out against the respondents / accused,
however, the same is not believed by the Special Court. She
has further argued that though the prosecution witnesses
have supported the case of the prosecution, the trial court
not believed their evidence and acquitted the respondents -
accused erroneously. She has requested to allow the
present appeal.
9. On behalf of the surviving accused / respondent Nos.4,
5, 6 and 8, Mr.Ekant Ahuja has submitted that there is
hardly any substance in the submissions of learned APP.
There is no evidence on record connecting the accused with
the commission of the offence. There are material
contradictions and omissions in the evidence of the
prosecution witnesses. The trial court has rightly
appreciated the evidence on record and held that the
prosecution has failed to prove the case against the
respondents - accused beyond reasonable doubt and rightly
acquitted the accused. He has requested to dismiss the
present appeal.
R/CR.A/875/1994 CAV JUDGMENT DATED: 18/10/2022
10. It is further submitted by Mr.Ahuja learned advocate
for the surviving respondents - accused that in the entire
case, nowhere the role of the surviving accused /
respondents have come on record to show their involvement
in the alleged offence. The case of the prosecution, as
alleged, is that the accused had taken the deceased in the
Tractor and all the accused had beaten the deceased and
had made him to consume intoxicant, as a result of which,
the deceased died in the police lock up. No iota of evidence
has been brought on record regarding the present accused /
respondents. On the contrary, as per the evidence of the
accused / respondents, the deceased was not in a position
to control himself and was in a drunkard condition and he
was taken to Kheralu Police Station at 10 PM by the
accused / respondent No.5 and a case has been registered
under the Prohibition Act against the deceased and he was
checked by the Medical Officer at 11 PM in the hospital and
he was found under the influence of alcohol and thereafter
he was brought to Kheralu Police Station and placed in lock
up. As such, the medical evidence does not support the case
of the prosecution and the learned Special Judge has rightly
appreciated the evidence and given correct finding and has
rightly acquitted the accused / respondents.
11. Heard advocates for the respective parties and perused
the impugned judgement and order of acquittal and re-
appreciated the entire evidence on record.
R/CR.A/875/1994 CAV JUDGMENT DATED: 18/10/2022
12. 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 is 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.
13. On re-appreciation of the evidence on record, it
appears that the here in this case, the prosecution has
examined Dr. Tushar Shetalvad at Ex.33, complainant
Gomtiben Ramabhai at Ex.35, Naresh Laljibhai at Ex.36,
Ramaji Gemarji at Ex.37, Hamirji Gemarji at Ex.38,
Ramjibhai Kamrajbhai at Ex.39, Sardarji Dalaji at Ex.41
and investigating officer N.V. Patel at Ex.67.
14. So far as the medical evidence is concerned, the Doctor
who has performed post-mortem of the deceased, has found
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10 external injuries on the body of the deceased. It is the
opinion of the Doctor that the injuries were simple injuries
and contusions were found and no internal fracture was
found. The size of the contusions is 1 c.m. x 1 c.m.
However, the internal examination reveals that there was
rupture of liver and haemorrhage and the cause of death is
haemorrhagic shock due to rupture of liver. As per the
Doctor, the external injuries are possible with stick or kick
and fist blows.
It is admitted by the Doctor in the cross-examination
that on 6/2/1993 i.e. on the date of accident at 11 PM, the
deceased was brought before him for blood test. He was not
in his control. His gait was abnormal. His eyes were dilated
and he was under the influence of alcohol. It is also
admitted by the Doctor that when the deceased was brought
before him for blood test, he found no injury on his body
nor the deceased had complained about beating by
anybody. It is admitted by the Doctor that contusions can
be seen due to pm lividity. The deceased was taken to the
police station after his blood sample was taken. Thereafter
he was kept in the lock up.
From the evidence of the Medical Officer, Mr.Shetalvad
and admission by him in the cross examination, coupled
with the evidence of the investigating officer that the
deceased was in a habit of drinking and many prohibition
cases were registered against the deceased and when the
Doctor himself has not seen any injury at the time when
R/CR.A/875/1994 CAV JUDGMENT DATED: 18/10/2022
blood sample was taken on the body of the deceased,
rupture of liver was due to some beating by the accused
cannot be believed. In this case, FSL Report of the Visera is
also on record. There was presence of Ithyl alcohol in a huge
quantity. The deceased was in a habit of regular
consumption of alcohol. As such the possibility of rupture of
liver due to regular consumption of alcohol can never be
ruled out as such on appreciation of evidence of the Medical
Officer and the finding given by the learned Special Judge
with respect to the death of the deceased is doubtful cannot
be denied.
15. As regards the case of the prosecution and evidence
with respect to the accused / respondents taking away the
deceased in the tractor and beating him and due to the
injuries sustained by the deceased, the deceased has died if
seen, the complainant Gomtiben Ramabhai has been
examined at Ex.35. she has reiterated the facts of the
complaint. It is also stated that accused / respondent Nos.1
and 2 had taken her husband in the tractor and other
accused were there in the tractor and thereafter on the next
day, her husband was found dead in the police lock up.
Considering the cross examination of the complainant,
till morning her husband had not come, she started
searching her husband. It is the case of the prosecution that
in all 9 accused had taken the deceased with them. The
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complainant, who is herself termed to be an eye witness,
had shown 9 accused taking her husband then she should
have immediately gone for the search of her husband at
night and should not have waited till morning. This conduct
of the complainant is unnatural who has not cared to go in
search of her husband though as per her say 9 persons
were there in tractor who had taken away her husband.
It is also the case of the prosecution that one of the
accused from the tractor had spoken some filthy and
abusive words against the caste of the deceased, but this
aspect has not been stated by the complainant in her
evidence.
16. PW No.3 Mr. Naresh, who is nephew of the deceased,
has stated that his aunty - complainant Gomtiben sent him
for search of the deceased and he had informed the
complainant that the accused were beating and having
quarrel with the deceased and the accused had subjected
the deceased to consume intoxication. It is pertinent to note
that if the complainant has sent her nephew for search of
her husband and he informed the complainant regarding
quarrel and beating by the accused, then also the
complainant remained silent and she does not visit the site
of incident. This conduct on the part of the complainant,
who is wife of the deceased is unnatural and it falsifies the
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story of the prosecution regarding taking away of the
deceased by 9 accused persons.
In the evidence of the complainant it has come on
record that she had asked Hamirbhai regarding her
husband and Hamirbhai told that he was taken in a tractor
and was beaten. This aspect shows that if the complainant
was informed by her nephew regarding beating of the
deceased by the accused in the tractor, then what was the
requirement of the complainant to ask Hamirbhai regarding
her husband. This aspect shows that the complainant was
totally ignorant regarding the aspect about the accused
beating the deceased. It is on record that the complainant
had informed about her husband to Ramaji Ghemraji,
Hamir Ghemaraji and Ramesh Lavji in the next morning
when her husband had not returned. It is admitted that
when the deceased had not come in the morning, she sent
her nephew Mr. Naresh Lavji to Village Lunava to inquire
about the deceased where the deceased was not found and
subsequently Mr. Naresh informed that Ramabhai expired
in the jail and she had gone to Kheralu Police Station where
other people were gathered and police told to get a
complaint written through advocate and written complaint
was thereafter filed by her.
17. It is pertinent to note that it has come on record that
there are other houses in the vicinity where the house of the
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complainant is situated but nobody has seen the deceased
being taken away by accused / respondent Nos.1 and 2 in a
tractor. It is also not stated by the complainant that the
accused persons were armed with weapons. As such, in the
entire investigation no weapons were recovered from the
accused / respondents nor it is stataed by witness Mr.
Naresh Naresh Laljibhai taht the accused were armed with
weapons. Hence the evidence of the complainant does not
inspire confidence with respect to the complaint filed by the
complainant against the respoondents / accused.
18. PW Mr. Naresh Lavji, who according to his say staying
with the deceased when respondent Nos.1 and 2 called him.
As per his say, accused / respondent Nos.1 and 2 had come
to take away the deceased with them, and when the
deceased denied, they had abused him thereafter they took
away the deceased in the tractor. It is to be noted at this
juncture that the complainant has not stated a word
regarding presence of the witness Mr. Naresh Lavji at the
time when the deceased was called by the accused /
respondent Nos.1 and 2. Had it been case regarding
presence of the witness Mr. Naresh Lavji, there was no
requirement of complainant to ask Mr. Naresh Lavji to go
and inquire about the deceased. Mr. Naresh Lavji has stated
that he went to inquire about his uncle and at that time
accused were beating Ramabhai. This aspect is also
doubtful and the conduct of this witness Mr. Naresh Lavji is
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also unnatural because when as per his say his uncle was
called by the accused Nos.1 and 2 and his uncle denied but
his uncle was forcefully taken in a tractor by the accused
Nos.1 and 2, he could have followed immediately or he could
have shouted for help but such action has not been taken
by the witness. Even when Naresh has seen that the
accused / respondents were beating his uncle near
Panchayat Office, he did not intervene to save his uncle,
which shows the unnatural conduct of witness Mr. Naresh
and also creates doubt regarding his presence at the house
of the deceased as well as at the place where the deceased
was beaten. According to the case of the prosecution PW
No.3 Mr. Naresh also stated that when he asked the
accused why they are beating his uncle, the accused /
respondents told that it was only for fun and nothing is
serious. This conduct also cannot be believed, as the Naresh
is young boy of 20 years and can differentiate between fun
and real beating, but he has not tried to save his uncle or
has not shouted for help.
Moreover, as per the say of the complainant, she
informed Mr. Naresh on the next day morning regarding her
husband and Mr. Naresh was sent to Lunva village to find
Ramabhai. If Mr. Naresh had seen the incident, he could
have informed in the morning itself when the complainant
sent him for searching Ramabhai that his uncle was beaten
by the accused last night near Panchayat Office. As such
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evidence of both the witnesses are contradictory to each
other, not trustworthy and inspire no confidence.
19. Ramaji Gemarji Ex.37 and Hamirji Gemarji Ex.38, who
were approached by complainant Gomtiben as per the say of
the complainant, both the witnesses have turned hostile.
Witness Ramajibhai Ghemarji has added one more thing
that when he was sleeping in his courtyard, he heard some
noise and he saw accused Nos.1 and 2 with wooden club
and wooden stick. This aspect of accused Nos.1 and 2 with
wooden club and wooden stick has not been asserted by the
complainant as well as witness Mr. Naresh Lavji. Both the
witnesses are of the caste of the complainant. They have not
stated anything against the accused beating the deceased.
On the contrary Ramajibhai has supported the version of
the defence that Ramabhai was taken in a tractor to the
police station from Chaudharivas by the accused /
respondent Nos.1, 2 and 5, as he was in a drunken
condition and was creating commotion. This evidence of
witness Ramaji falsifies the case of the prosecution.
20. Witness Mr. Hamirji has added something more and
has stated that when he was at his home, he heard some
noise and he saw accused / respondent Nos.1, 2 and 6 were
beating Ramabhai. Now considering this aspect when he
himself is saying that he had seen accused / respondent
Nos.1, 2 and 6 beating the deceased, he has not informed
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this fact to the complainant, who had approached him for
inquiring about her husband. As such the words of witness
Hamirji cannot be relied upon and it is only bare words like
an arrow in the air without any support. The conduct of
Hamirji of seeing Ramabhai was beaten, but not informing
anybody nor intervening and saving Ramabhai is unnatural
and as the witness has turned hostile, he is not reliable
witness.
21. Police witnesses, who has been examined on record
namely Mr. Ramaji Kamra Ex.39, has specifically stated
that he was in Kheralu Police Station as PSO at 10 PM and
accused / respondent No.5 brought one person before him,
who was under influence of alcohol, who was named as
Ramabhai Sendha and he was not able to walk and having
no control over himself. Panchnama was drawn of the
person of Ramabhai and he was sent for examination before
the Doctor. It is also admitted that no injury or any sign of
injury was found on his body.
22. Witness Mr. Sardarji, who is a Guard in Kheralu Jail
stated that at 12 AM Ramabhai was brought in the jail lock
up and when in the morning he went to take Ramabhai, he
was found dead. It is admitted in the cross examination of
the guard that there was no external injury found on the
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body of the deceased but his clothes were stained with dirt
and mud.
23. P.I. N.G. Patel, investigating officer has deposed
regarding the process of investigation done by him. The
evidence of the investigating officer which has come on
record do support the case of the defence that as the
deceased was under the influence of alcohol and was
creating commotion in the Chaudhrivas, he was taken to
the Police Station and on the next day, he had expired
under suspicious circumstances.
24. From the entire on record, nothing has been brought
on record that the respondents have indulged themselves in
forming unlawful assembly and beating the deceased by
intoxicating him to death.
25. The evidence of witnesses mainly complainant -
Gomtiben and Mr. Naresh Lavji is contradictory to each
other. The evidence of both the witnesses is not trust worthy
and not reliable, whereas, on the other hand, defence
version right from the beginning that the deceased was
creating commotion under the influence of alcohol in
Chaudharivas was taken to the police station where he was
sent for medical examination before the Doctor and no
injury was found by the Doctor. While examination he was
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not having control over his body and on the next day in the
lock up he found dead in suspicious condition, are of a
nature which does not prove guilt. The entire evidence of the
prosecution except accused / respondent Nos.1 and 2 is
concerned, no finger has been pointed out regarding the role
of the other accused in this case and mainly when the
defence version is found to be probable and evidence of
prosecution witnesses is not reliable and trustworthy, it
cannot be ruled out that the death of the deceased
Ramabhai was under suspicious circumstances to get
compensation under the Atrocity law and hence, the
complaint is filed against the accused / respondents. Hence
the findings of the learned Special Judge are cogent and
convincing and does not require interference.
26. Considering the entire evidence on record oral as well
as documentary, this Court is of the opinion that the
prosecution has failed to prove the case against the accused
by leading cogent and convincing evidence. The judgement
delivered by the Sessions Judge is sound on the aspect of
law and facts. The evidence brought on record by the
prosecution before the trial court has been rightly
appreciated by the trial court. No apparent error on the face
of the record is found from the judgement. The judgement
does not suffer any material defect or cannot be said to be
contrary to the evidence recorded.
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27. It may be noted that as per the settled legal position,
when two views are possible, the judgment and order of
acquittal passed by the trial Court should not be interfered
with by the Appellate Court unless for the special reasons. A
beneficial reference of the decision of the Supreme Court in
the case of State of Rajasthan versus Ram Niwas reported
in (2010) 15 SCC 463 be made in this regard. In the said
case, it has been observed as under:-
"6. This Court has held in Kalyan v. State of U.P.,
(2001) 9 SCC 632 :
"8. The settled position of law on the powers to be
exercised by the High Court in an appeal against an
order of acquittal is that though the High Court has
full powers to review the evidence upon which an
order of acquittal is passed, it is equally well settled
that the presumption of innocence of the accused
persons, as envisaged under the criminal
jurisprudence prevalent in our country is further
reinforced by his acquittal by the trial court.
Normally the views of the trial court, as to the
credibility of the witnesses, must be given proper
weight and consideration because the trial court is
supposed to have watched the demeanour and
conduct of the witness and is in a better position to
appreciate their testimony. The High Court should be
slow in disturbing a finding of fact arrived at by the
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trial court. In Kali Ram V. State of Himachal
Pradesh, (1973) 2 SCC 808, this Court observed that
the golden thread which runs through the web of
administration of justice in criminal case is that if
two views are possible on the evidence adduced in
the case, one pointing to the guilt of the accused and
the other to his innocence, the view which is
favourable to the accused should be adopted. The
Court further observed:
"27. It is no doubt true that wrongful acquittals are
undesirable and shake the confidence of the people
in the judicial system, much worse, however, is the
wrongful conviction of an innocent person. The
consequences of the conviction of an innocent person
are far more serious and its reverberations cannot
but be felt in a civilised society. Suppose an innocent
person is convicted of the offence of murder and is
hanged, nothing further can undo the mischief for
the wrong resulting from the unmerited conviction is
irretrievable. To take another instance, if an
innocent person is sent to jail and undergoes the
sentence, the scars left by the miscarriage of justice
cannot be erased by any subsequent act of
expiration. Not many persons undergoing the pangs
of wrongful conviction are fortunate like Dreyfus to
have an Emile Zola to champion their cause and
succeed in getting the verdict of guilt annulled. All
this highlights the importance of ensuring, as far as
possible, that there should be no wrongful conviction
of an innocent person. Some risk of the conviction of
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the innocent, of course, is always there in any system
of the administration of criminal justice Such a risk
can be minimised but not ruled out altogether It may
in this connection be apposite to refer to the
following observations of Sir Carleton Alien quoted
on page 157 of "The Proof of Guilt" by Glanville
Williams, second edition:
"I dare say some sentimentalists would assent to the
proposition that it is better that a thousand, or even
a million, guilty persons should escape than that one
innocent person should suffer; but no responsible and
practical person would accept such a view. For it is
obvious that if our ratio is extended indefinitely,
there comes a point when the whole system of justice
has broken down and society is in a state of chaos."
28. The fact that there has to be clear evidence of the
guilt of the accused and that in the absence of that it
is not possible to record a finding of his guilt was
stressed by this Court in the case of Shivaji
Sahebrao, (1973) 2 SCC 793, as is clear from the
following observations:
"Certainly it is a primary principle that the accused
must be and not merely, may be guilty before a court,
can be convicted and the mental distinction between
'may be' and 'must be' is long and divides vague
conjectures from sure considerations."
"9. The High Court while dealing with the appeals
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against the order of acquittal must keep in mind the
following propositions laid down by this Court,
namely, (i) the slowness of the appellate court to
disturb a finding of fact; (ii) the noninterference with
the order of acquittal where it is indeed only a case
of taking a view different from the one taken by the
High Court."
8. In Arulvelu and another versus State reported
in (2009) 10 Supreme Court Cases 206, the Supreme
Court after discussing the earlier judgments,
observed in para No. 36 as under:
"36. Careful scrutiny of all these judgments lead to
the definite conclusion that the appellate court
should be very slow in setting aside a judgment of
acquittal particularly in a case where two views are
possible. The trial court judgment can not be set
aside because the appellate court's view is more
probable. The appellate court would not be justified
in setting aside the trial court judgment unless it
arrives at a clear finding on marshaling the entire
evidence on record that the judgment of the trial
court is either perverse or wholly unsustainable in
law."
28. As observed by the Hon'ble Supreme Court in the case
of Rajesh Singh & Others vs. State of Uttar Pradesh
reported in (2011) 11 SCC 444 and in the case of
Bhaiyamiyan Alias Jardar Khan and Another vs. State
R/CR.A/875/1994 CAV JUDGMENT DATED: 18/10/2022
of Madhya Pradesh reported in (2011) 6 SCC 394, while
dealing with the judgment of acquittal, unless reasoning by
the learned trial Court is found to be perverse, the acquittal
cannot be upset. It is further observed that High Court's
interference in such appeal in somewhat circumscribed and
if the view taken by the learned trial Court is possible on the
evidence, the High Court should stay its hands and not
interfere in the matter in the belief that if it had been the
trial Court, it might have taken a different view.
29. Scope of appeal against acquittal is well laid down in
case of Chandrappa and ors. vs. State of Karnataka
reported in (2007) 4 SCC 415, it was observed:
"42. From the above decisions, in our considered
view, the following general principles regarding
powers of appellate Court while dealing with an
appeal against an order of acquittal emerge;
(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;
R/CR.A/875/1994 CAV JUDGMENT DATED: 18/10/2022
(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 emphasize 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 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."
R/CR.A/875/1994 CAV JUDGMENT DATED: 18/10/2022
30. Considering the aforesaid facts and circumstances of
the case and law laid down by the Hon'ble Supreme Court
while considering the scope of appeal under Section 378 of
the Code of Criminal Procedure, no case is made out to
interfere with the impugned judgment and order of
acquittal.
31. In view of the above and for the reasons stated above,
present Criminal Appeal deserve to be dismissed and is
accordingly dismissed.
Sd/-
(S.H.VORA, J)
Sd/-
(RAJENDRA M. SAREEN,J)
R.H. PARMAR
