State Of Gujarat vs Bipinbhai Ganeshbhai Parmar
2022 Latest Caselaw 7894 Guj

     R/CR.A/1392/2009                                JUDGMENT DATED: 14/09/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 1392 of 2009


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                             STATE OF GUJARAT
                                   Versus
                  BIPINBHAI GANESHBHAI PARMAR & 2 other(s)
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Appearance:
MS JIRGA ZHAVERI APP for the Appellant(s) No. 1
MR PREMAL R JOSHI(1327) for the Opponent(s)/Respondent(s) No. 1,2,3
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    CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                                 Date : 14/09/2022

                                 ORAL JUDGMENT

1. Heard learned APP Ms. Jirga Jhaveri for the appellant - State and learned advocate Mr. Premal Joshi for the respondents at length.

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2. The State has filed this acquittal appeal challenging the judgment and order dated 29.04.2009 passed by the learned 3rd Addl. District Judge, Nadiad in the Sessions Case No. 72/2007 for the offences punishable under sections 306, 506(2) read with 114 of IPC under sections 306, 506(2) read with 114 of IPC, holding acquittal of the accused person against which the State has preferred the appeal under section 378(1)(3) of Criminal Procedure Code, 1973.

3. The factual matrix of the prosecution in a nutshell is as under :

3.1 That the complainant VijayKumar Lallubhai Makwana registered a complaint being I-CR No. 52/2006 against the accused with Vaso Police Station, Nadiad, Dist: Kheda for the offence punishable under Sections 306,506(2) read with 114 of the IPC. On 01.09.2006 Vijay @ Vinodbhai Lalluhas given complaint that on previous day his brother Harishbhai had returned at his residence till late night, he made inquiry he could not avail the location of his brother. Further he stated in the complaint that since last three days his brother was in frustration and not feeling well. One morning at 6'o clock he came to the residence of the complainant and he was not in good balance. The complainant had offered for seat and at that time Harishbhai said that his neighbor Vipinbhai and his family members including Mandhuben, Roshni and Navinbhai and Kanubhai were threatening him and said that he should leave the place otherwise his family would be killed and therefore he has taken poison and thereafter complainant took him to the hospital. Thereafter, the doctor declare him brought dead. It is also the case of the prosecution that the family members of

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Vipinbhai residing in neighbors time and again threatened his brother by saying he would make piece of body or tempo would run over him and all such threats his brother could not tolerate and all such situation Harishbhai took such serious step and committed suicide. Thereafter, the complainant Ushaben Harshadbhai made shouting and people gathered, then the complaint was given to that extent including inquest panchnama was carried out, postmortem was carried out. Ultimately, after recording the statements of witnesses the police has registed the complaint against the accused persons, and the charge-sheet was also filed. Criminal case no. 2577/2007 was filed but the concerned trial Court is not empowered to conduct the trial, therefore, the case was committed under section 209 of Cr.PC and Sessions case no. 72/2007 was given.

3.2 After examination of the witnesses by the learned Sessions Court, the Sessions Court had acquitted the accused persons on the basis of contradictions and benefit of doubt. Ultimately, upon that premises the State has preferred appeal under various grounds in nutshell mainly, the learned Sessions Judge had failed to appreciate the evidence in accordance with law. Further, learned Sessions Judge has not appreciated the threat given to the deceased by cutting into pieces and by accident using tempo and also caused mental harassment to the deceased Harishbhai with the help of each other which induced to commit suicide by the deceased on 01.08.2006. It is also contended that the Sessions Judge has not properly appreciated evidence on record. It is also contended that the evidence of all the accused were reliable and trustworthy. But learned Sessions Judge has committed error in appreciation of the same and therefore, it is prayed to quash and set aside the judgment and

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order passed by the learned Sessions Court by allowing this Appeal.

4. This Court has heard the arguments advanced by learned applicant Ms. Jirga Zhaveri for the state and arguments advanced by learned advocate Premal Joshi for all the respondents-accused persons at length.

5. Learned APP Ms. Jirga Zaveri for the State has drawn the attention of this Court that pursuant to different depositions adduced by the prosecution witnesses coupled with documentary evidence. The prosecution had proved its case beyond any reasonable doubt against the accused person but learned Special Judge has committed serious error in arriving at benefit of doubt of the accused person and therefore urged to interfere by this Court for the revisal for acquittal into conviction. And the judgment and order passed by the Sessions Judge be quashed and set aside for ariving at conviction of the accused persons.

6. Per contra, learned advocate Mr. Premal Joshi for the respondent has vehemently and fervently argued that in the present case learned Special Judge has rightly hold the acquittal of the accused person. He has heavily contended that in the present case, the basic requirement of the settled principles of law is to the effect that the prosecution is expected to prove the basic ingredients of abatement 107 coupled with section 306 of IPC beyond any reasonable doubt and therefore, the learned sessions judge has rightly arrived at the conclusion of availing the benefit of doubt as well as prosecution has failed to prove its case beyond reasonable doubt. Further, the prime

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witness Roshniben has not examined by the prosecution and there are other aspects also wherein the prosecution has failed to prove its case beyond any reasonable doubt to arrive at the offence under section 306 coupled with section 107 of IPC. Therefore, learned Special Judge has rightly arrived at the acquittal of the accused person and therefore there is no need of interference by this Court and the appeal may be dismissed.

6. Having heard the arguments advanced by learned advocates for the respective parties and considering the materials available on record.

6.1 Before adverting to the facts of the case, it would be worthwhile to refer to the scope of interference 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.

6.2 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

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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.

6.3 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 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.

6.4 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

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a long drawn out criminal trial are not again unnecessarily dragged to the High Court".

6.5 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 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)

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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 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

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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 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;

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(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:

"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.

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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 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

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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 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 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

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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 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

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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.

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

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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)."

7. The prosecution has testified different witnesses to substantiate the charges leveled against the accused person. Firstly, the prosecution has examined Dr. Girishkumar Thakkar PW-1 Exh.9 , at the respective time he was the medical officer at Nadiad Civil Hospital. He had carried out postmortem of the deceased. He was not cross-examined. It is to be noted that cause of death was by availing poisonous substance none of been much disputed by the defense persons.

7.1 The prosecution has testified Rasiklal PW-2 Exh. 11, he appears to be departmental head of forensic science at documents and photography department. He has admitted that while comparing the hand writing and the analysis of the same the results are not perfect. The prosecution has testified Exh. 13 wherein the applicant Harishbhai diseased came to know some facts from outsource and as such there is no direct evidence with him. Further, Exh. 14 Mark-D-2 wherein also some allegations were made by the family members of Vipinbhai including Madhuben, Navinbhai and others. It is also stated that the complaint was also filed upon the deceased for the kidnapping of Roshni who was daughter of Madhuben. It is pertinent to note that the statement of Roshni is not on recorded. Further, even she is not examined as witness, who is material witnesses and the learned Sessions Judge has rightly and meticulously decided that in absence of evidence on record of such material witness the elements of section 107, the abatement is not proved by the prosecution and therefore, the

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benefit of doubt was proved.

7.2 The prosecution has testified Vijaykumar Lallubhai Makwana- PW-3 Exh. 18, he appears to be the brother of the deceased and who is also the complainant is admitted during the cross-examination that wife of Vipinbhai Madhuben was abducted by the deceased that case was registered and the conviction was made. He has also admitted that so long as the facts of mental harassment is concerned he has informed at the residence.

7.3 Prosecution has testified Rameshbhai Makwana PW-4 Exh. 28, he appears to be panch-witness. It is pertinent to note that these panch wintness known to the deceased person coupled with the relation in capacity of maternal uncle(mama). Prosecution has testified Dineshbhai Dayabhai Makwana PW-5 Exh. 29, who is panch witness but he has merely signed in the pachnama. Prosecution has testified Babubhai Makwana PW-6 Exh. 30, he is also relative of deceased Harishbhai. He has admitted that on 02.09.2006 while recording the statement it was stated to the police that so long as the mental harassment is concerned to Vipinbhai and also the decease Harishbhai has taken poisonous substance. It is also not stated before the police. Prosecution has testified Ushaben Lallubhai PW-7 Exh.31 sister of the deceased. Contradictions was taken so long as poisonous substance taken by the deceased and also the cause of such act. Prosecution has also testified Harshadbhai Rohit PW-8 Exh.32 brother of the deceased Harishbhai. He has been cross-examined it is admitted that it is not stated that for whole night where he went. It is also admitted that so longer as the case of Roshni is concerned the deceased and rikshaw driver were awarded the probation. Prosecution has testified Pitambar

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Ramnbhai PW-9 Exh. 33 he appears to be head constable at Nadiad Town police station at the respective time. He has admitted that while registering the complaint so longer as concerned stamp paper and chitti is concerned same was not disclosed at the time of registration of complaint. Therefore, the Sessions Court has rightly arrived at the benefit of doubt to the accused persons for the charges leveled against the accused persons for the abatement and suicide.

7.4 The prosecution has testified Mohnabhai Damor PW-10 Exh.34 who appears to be ASI of the police station at the relevant time, he has just registered the offence and except this he has not carried out any procedure. Prosecution has testified Vijar Parmar PW-11 Exh. 36 he appears to be PSI at Vaso Police station at the relevant time. On the basis of the nature of offence ie cognisable offence he had carried out the procedure accordingly. During cross-examination he has admitted that he has not recorded any statement of any person who made the so called stamps cum stamp vendor. Prosecution has testified Manjibhai Malabhai Chauhan PW-12 Exh. 39 he appears to be PSI at the police station at the relevant time. He has submitted the charge-sheet upon the accused persons. He has also admitted that in the criminal cases normally the suspected witnesses are required to be shown as witness. It is also admitted that if there is some evidence who has knowledge of the offence, to that effect the statements are required to be obtained. It is also admitted that so longer as charge-sheet is concerned, material witness Roshni ben is not shown as witness, nor her statement is recorded. It is also admitted whatever the papers submitted wherein the allegation of the offence against Roshniben is also disclosed upon all such premises this Court is

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of the opinion that the learned Sessions Judge as rightly appreciated the facts so longer as the material witness Roshniben is concerned to whom the prosecution has neither examined as witness nor signed as witness in the charge-sheet and therefore, learned Sessions Judge has rightly arrived at the benefit of doubt for the charges leveled against the accused person.

8. This Court has completely gone through the judgment and order passed by 3rd Addl. District Judge, Nadiad learned on 29.04.2009, it appears that the same is not perverse neither capricious nor arbitrary no illegality and no any error of law. Therefore, there is no requirement to interfere with the same and therefore the judgment and order passed by 3rd Addl. District Judge, Nadiad, requires to be confirmed and appeal is devoid of merits. Hence, in-fleri, prosecution has failed to prove case upon the accused.

9. In view of the aforesaid discussion and observations, passed by the this Court is of the opinion that the judgment and order dated 29.04.2009, passed by 3rd Addl. District Judge, Nadiad in the Sessions Case No. 72/2007, is just and proper and there is no need of interference by this Court. Accordingly, this appeal stands dismissed and the judgment and order dated 29.04.2009 passed by 3rd Addl. District Judge, Nadiad in the Sessions Case No. 72/2007, is confirmed.

10. Record and Proceedings be sent back to the trial Court concerned.

(A. C. JOSHI,J) Radhika