Gujarat High Court
State Of Gujarat vs Jamnaben W/O Trikambhai ... on 2 February, 2023
Bench: Hemant M. Prachchhak
R/CR.A/935/1996 JUDGMENT DATED: 02/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 935 of 1996
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI : Sd/-
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK: Sd/-
=======================================================
1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
=======================================================
STATE OF GUJARAT
Versus
JAMNABEN W/O TRIKAMBHAI KARAMASHI & 3 other(s)
=======================================================
Appearance:
MS JIRGA JHAVERI APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1,3,4
BAILABLE WARRANT SERVED for the Respondent(s) No. 2
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MR PAWAN A BAROT(6455) for the
Opponent(s)/Respondent(s) No. 3
MR PRATIK B BAROT(3711) for the
Opponent(s)/Respondent(s) No. 2
=======================================================
CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Page 1 of 27
Downloaded on : Tue Feb 07 20:38:22 IST 2023
R/CR.A/935/1996 JUDGMENT DATED: 02/02/2023
Date : 02/02/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
1. The present appeal has been filed by the State
under Section 378 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as 'the
Code' for short) challenging the judgment and
order of acquittal dated 16.07.1996 rendered by
the Additional Sessions Judge, Bhavnagar in
Sessions Case No.38 of 1996.
2. The brief facts leading to the filing of the
present appeal as under,
2.1 An FIR being C.R No.207/1995 came to be
registered with Gadhada Police Station for
the offences under Sections 363, 366-S, 354,
502, 201 and 34 of the Indian Penal Code
alleging inter alia that the original accused
no.3, Ahesan Sandhi and the original accused
no.2, Hanshaben were having illicit
relationship and the said Varsha had seen
both of them in compromising condition and
the original accused no.3, Ahesan Sandhi had
also outraged the modesty of the said Varsha
and thus having apprehension about the fact
that the said Varsha would disclose the fact
of illicit relationship between the original
accused nos.3 and 2 and the fact of outraging
her modesty, the original accused nos.1 and 3
have poured the kerosene over the body of the
said Varsha and set her ablaze and at that
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time, the original accused nos.2 and 4 have
caught hold of the deceased and because of
the said burn injuries, the said Varsha
succumbed to the same.
2.2 On registration of the aforesaid FIR, the
investigation was put into motion and during
the course of investigation, the
Investigating Agency has recorded the
statements of witnesses and collected
documentary evidence, prepared various
panchnamas and on conclusion of the
investigation, chargesheet came to be filed
against the respondents - accused before the
concerned Magistrate Court.
2.3 As the case was exclusively triable by the
Court of Sessions, the concerned Magistrate
committed the case under Section 209 of the
Code to the concerned Sessions Court, where
it has been registered as Sessions Case
No.38/1996.
2.4 During the course of the trial, the
prosecution examined 22 witnesses and also
produced documentary evidence as mentioned in
Paragraph No.5 of the impugned judgment and
order.
2.5 After the prosecution evidence was over,
further statements of the accused came to be
recorded under Section 313 of the Code and
thereafter the learned Trial Court passed the
impugned judgment and order whereby the
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respondents - accused were acquitted from the
charges levelled against them, which led to
filing of the present appeal by the appellant
- State.
3. At the outset, it is pertinent to note that the
original complainant, Girdharbhai Dhanjibhai
Zindiya had filed Criminal Revision Application
No.342/1996 before this Court challenging the
impugned judgment and order of acquittal and the
Division Bench of this Court, vide order dated
27.01.1997, rejected the said Revision Application
and thereby confirmed the judgment and order of
acquittal passed by the concerned trial court.
While rejecting the said Revision Application, the
Division Bench has observed that "In our opinion,
therefore, the acquittal order passed by the trial
court is well merited much less there is any scope
for entertaining the revision application. The
application is therefore rejected."
4. At this stage, it is also relevant to observe that
during the pendency of this appeal, the respondent
nos.1, 3 and 4 have expired and, therefore, the
present appeal stands abated qua those respondents
- accused. Hence, this appeal is now confined to
respondent no.2 - accused.
5. Heard learned APP Ms. Jirga Jhaveri for the
appellant - State and learned advocate Mr. Pratik
Barot for the respondents - accused.
6. Learned APP, Ms. Jirga Jhaveri has referred to the
depositions of prosecution witnesses i.e. PW Nos.1
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to 22 and also referred to FSL report as well as
postmortem note of the deceased and, thereafter,
contended that though in the present case, there
is no eyewitness to the incident in question, from
the depositions of the prosecution witnesses, it
has been established before the trial court that
the deceased was lastly seen in company of the
respondent no.2 - accused, Hanshaben before the
incident took place. Learned APP has referred to
the deposition given by PW No.2, Makodbhai
Vastabhai, Exh.15. It is further submitted that
the respondent no.2 herself has made extra
judicial confession before PW No.6, Raghav
Devshibhai, Exh.24 and PW No.7, Chhaganbhai
Kalubhai, Exh.28. In her extra judicial confession
made before the aforesaid two witnesses, the
respondent no.2 - accused has specifically
narrated the incident in question and the manner
in which it has taken place. At this stage,
learned APP has referred to FSL reports at Exhs.70
& 71. It is submitted by learned APP that from the
exhibit Mark - A, B, E, F, H & J, residual
petroleum hydrocarbon (kerosene) were found.
Learned APP, therefore, contended that from the
cloth of the respondents - accused, kerosene was
found and, therefore on the basis of the aforesaid
evidence, the prosecution has proved the case
against the respondents - accused beyond
reasonable doubt, inspite of that, the
trial court has acquitted the respondents -
R/CR.A/935/1996 JUDGMENT DATED: 02/02/2023
accused. Learned APP, therefore, urged that the
impugned judgment and order of acquittal may be
quashed and set aside.
7. On the other hand, learned advocate, Mr. Pratik
Barot appearing for the respondents - accused has
supported the reasoning recorded by the trial
court while passing impugned judgment and order of
acquittal in favour of the respondents - accused.
Learned advocate has also referred to the
deposition of the prosecution witnesses and also
referred to the documentary evidence produced by
the prosecution. It is mainly contended that from
the deposition of the prosecution witnesses, it
cannot be said that the deceased was lastly seen
in company of the respondent no.2 - accused. It is
also submitted that the prosecution has miserably
failed to prove the motive on the part of the
respondents - accused for commission of crime in
question and, therefore in absence of any motive,
the trial court has rightly acquitted the
respondents - accused. At this stage, it is also
submitted that from the deposition given by PW
No.2, Makodbhai Vastabhai, Exh.15, it is not
conclusively proved that the deceased was lastly
seen in company of the respondent no.2 herein,
Hanshaben. Thus, when the case of the prosecution
rest on circumstantial evidence and when the
prosecution has failed to prove the motive and
theory of last seen together, no error is
committed by the trial court while passing
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impugned judgment and order of acquittal in favour
of the respondents - accused.
8. Learned advocate would further submit that the
prosecution has placed reliance upon the theory of
extra judicial confession made by the respondent
no.2 - accused before two witnesses viz., PW No.6,
Raghav Devshibhai, Exh.24 and PW No.7, Chhaganbhai
Kalubhai, Exh.28, however both the aforesaid
witnesses have not supported the case of the
prosecution and they have been declared hostile.
Even otherwise also, it is submitted that the
evidence of extra judicial confession is a very
weak piece of evidence and, therefore, the trial
court has rightly discarded such evidence led by
the prosecution before the trial court.
9. It is further submitted by learned advocate for
the respondents - accused that the incident took
place on 30.09.1995, for which, initially
accidental death case was registered and after a
period of two days i.e. on 02.10.1995, FIR came to
be filed against the respondents - accused and in
pursuance thereto, the respondent nos.1 and 2 came
to be arrested on 04.10.1995; the respondent no.3
came to be arrested on 08.10.1995 and the
respondent no.4 came to be arrested on 21.10.1995
and it is the case of the prosecution that even
thereafter also, on the clothe of the accused,
which were worn by them at the time of their
arrest and which were worn by them at the time of
commission of crime, from the said cloth, which
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were sent to FSL for analysis, kerosene was found.
It is submitted that the said story is not
believable and, therefore, the trial court has
rightly discarded the said evidence. Learned
advocate, therefore, urged that when the trial
court has not committed any error, which requires
any interference in the present appeal filed under
Section 378 of the Code. Learned advocate,
therefore, urged that this appeal be dismissed.
10. Learned advocate has also placed reliance upon the
following decisions in support of his contentions,
(1) judgment in case of Mohan @ Srinivas @ Seena
@ Tailor Seena Vs. State of Karnataka,
reported in 2021 (15) Scale 184;
(2) judgment in case of Chandrapal Vs. State of
Chhattisgarh, reported in AIR 2022 SC 2542;
(3) judgment in case of Ravi Sharma Vs. State
(Government of NCT of Delhi), reported in
2022 JX(SC) 655;
(4) judgment in case of Rahul @ Bablu @ Babu
Sureshbhai Nagardas Panchal Vs. State of
Gujarat, reported in 2021 (4) GLR 3131;
11. We have considered the submissions canvassed by
learned advocates for the parties. We have also
perused the evidence produced by the prosecution
led before the trial court and the decisions upon
which reliance is placed by learned advocates.
12. It is not in dispute that the present case of the
prosecution rest on circumstantial evidence and
there is no eyewitness to the incident in
R/CR.A/935/1996 JUDGMENT DATED: 02/02/2023
question. It is alleged by the prosecution that
the deceased aged about 11 years was abducted by
the respondent no.2 and she was lastly seen in
company of the respondent no.2 - accused and,
thereafter, the original accused no.3 poured
kerosene on the deceased, the respondent no.2
caught hold of the deceased and, thereafter, the
original accused no.3, Ahesan set the deceased on
fire and the original accused nos.1 and 2 have
abetted the said two accused at the time of
commission of incident in question and, thereby
all the accused have committed offence punishable
under Sections 363, 366-A, 354, 302, 201 and 34 of
the IPC. With a view to prove the charges leveled
against the respondents - accused, the prosecution
has examined 22 witnesses as observed hereinabove
and also produced documentary evidence before the
trial court.
13. PW No.3, Dr. Narendrabhai Trambaklal, Exh.16 is
the doctor, who had performed postmortem of the
deceased. From the deposition of said witness, it
is revealed that the death of the deceased was
homicidal death. Learned advocate for the
respondents - accused has not disputed the
aforesaid aspect that the death of the deceased
was homicidal. However, question in the present
case is to who has committed the said crime. It is
admitted position that there was no eyewitness to
the incident in question. The prosecution has
tried to canvass its case before the trial court
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that the deceased was lastly seen in company of
the respondent no.2 - accused, Hanshaben by PW
No.2, Makorbhai Vastabhai, Exh.15. It is relevant
to note that the incident took place on 30.09.1995
and initially the incidental death case was
registered, pursuant to which, the concerned
Police Officer has recorded the statements of
certain witnesses.
14. So far as the statement of Makorbhai Vastabhai is
concerned, the said witness stated on 01.10.1995
i.e. before registration of the FIR that he had
seen the daughter of Gidha and Trikam, however, he
did not give the name of the respondent no.2 as
well as the deceased. Subsequently when the
statement of the aforesaid witness was recorded by
the Investigating Agency pursuant to registration
of the FIR, he had stated that he had seen the
deceased, Varsha in company of the respondent
no.2, Hansha. However during the course of cross-
examination of the said witness, he has stated
that he has seen aforesaid two persons from 12-14
ft. distance and because of his old age, he could
not see properly. Thus from the aforesaid
deposition given by PW No.2, it cannot be
conclusively proved that the deceased, Varsha was
lastly found in the company of the respondent no.2
- accused, Hanshaben prior to incident in
question.
15. So far as the deposition given by PW No.4,
Labhuben Panchabhai, Exh.21 and PW No.5,
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Parshottambhai Tapubhai, Exh.22 are concerned, the
deposition of the said witnesses are not much
helpful to the prosecution.
16. The prosecution, thereafter, examined PW No.6,
Raghavbhai Devshibhai, Exh.24. It is the case of
the prosecution that the respondent no.2 -
accused, Hanshaben made extra judicial confession
before the said witness. However, if the
deposition of said witness is carefully seen, it
is revealed that the said witness has not
supported the case of the prosecution and has been
turned hostile.
17. Similarly, PW No.7, Chhaganbhai Kalubhai, Exh.28,
upon which reliance is placed by the prosecution
with regard to the theory of extra judicial
confession, is concerned, it is pertinent to note
that the said witness has not supported the case
of the prosecution and he was also declared
hostile. Thus, the prosecution has failed to prove
the story of extra judicial confession made by the
respondent no.2 and others in presence of said
witness.
18. Another contention taken by learned APP while
relying upon FSL reports, Exhs.70 & 71 that from
the cloth of all the respondents - accused,
residual petroleum hydrocarbon (kerosene) was
found. However, it is pertinent to note that the
incident took place on 30.09.1995 and the
respondent nos.1 and 2 were arrested on
04.10.1995, whereas the original accused no.3,
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Ahsan was arrested on 08.10.1995 and the original
accused no.4, Trikam was arrested on 21.10.1995.
It is also pertinent to note at this stage that
initially accident death case was registered and
after a period of two days' of the incident i.e.
on 02.10.1995, FIR came to be registered against
the respondents - accused. Now, it is the case of
the prosecution that all the aforesaid accused
were arrested on respective date with the cloth,
which they had worn at the time of crime in
question, however, the said story is not
believable in the facts of the present case and,
therefore, merely because the kerosene was found
from the cloth of the respondents - accused, they
cannot be convicted relying upon the said evidence
only.
19. Most important aspect in the present case is that
the prosecution has failed to prove motive on the
part of the respondents - accused in committing
alleged crime. It is now well settled that motive
plays important role in the case of circumstantial
evidence. No doubt, learned APP has contended that
the respondent nos.2 and 3 were having illicit
relationship and the deceased found the said
respondents - accused in compromising condition on
the date of incident and, therefore, the
respondent - accused, Hanshaben and the accused,
Ahesan were apprehending that she will tell the
said fact to the villagers and, therefore, she was
done to death, however, the prosecution did not
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examine any independent witness with a view to
prove the illicit relationship between the
respondent no.2, Hanshaben and the original
accused no.3, Ahesan. The prosecution has merely
placed reliance upon the extra judicial confession
made by the respondent no.2 - accused, Hanshaben
with a view to prove motive on the part of the
respondents - accused in commission of alleged
crime. This Court is of the view that in absence
of any motive on the part of the respondents -
accused in the present case of circumstantial
evidence, the trial court has not committed any
error while passing impugned judgment and order.
20. At this stage, this Court would like to refer to
the decisions upon which reliance is placed by
learned advocate for the respondents - accused.
20.1 In a judgment in case of Mohan @ Srinivas @ Seena
@ Tailor Seena (supra), the Hon'ble Supreme Court
has observed in Paragraph No.20 as under,
"20. Section 378 CrPC enables the State to
prefer an appeal against an order of
acquittal. Section 384 CrPC speaks of the
powers that can be exercised by the
Appellate Court. When the trial court
renders its decision by acquitting the
accused, presumption of innocence gathers
strength before the Appellate Court. As a
consequence, the onus on the prosecution
becomes more burdensome as there is a
double presumption of innocence. Certainly,
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the court of first instance has its own
advantages in delivering its verdict, which
is to see the witnesses in person while
they depose. The Appellate Court is
expected to involve itself in a deeper,
studied scrutiny of not only the evidence
before it, but is duty bound to satisfy
itself whether the decision of the trial
court is both possible and plausible view.
When two views are possible, the one taken
by the trial court in a case of acquittal
is to be followed on the touchstone of
liberty along with the advantage of having
seen the witnesses. Article 21 of the
Constitution of India also aids the accused
after acquittal in a certain way, though
not absolute. Suffice it is to state that
the Appellate Court shall remind itself of
the role required to play, while dealing
with a case of an acquittal."
20.1.1 From the aforesaid decision rendered by the
Hon'ble Supreme Court, it is clear that while
considering the appeal filed under Section 378 of
the Code by the State, the Appellate Court can
exercise the powers under Section 384 of the Code
when the trial court has acquitted the accused.
The presumption of innocence gathers strength
before the Appellate Court. As a consequence, the
onus on the prosecution becomes more burdensome as
there is a double presumption of innocence when
R/CR.A/935/1996 JUDGMENT DATED: 02/02/2023
two views are possible, one taken by the trial
court in case of acquittal is to be followed on
the touchstone of liberty along with the advantage
of having seen the witnesses.
20.2 In a judgment in case of Chandrapal (supra), the
Hon'ble Supreme Court has observed in Paragraph
No.7, as under,
"7. At the outset, it may be stated that
undisputedly the entire case of the
prosecution rested on the circumstantial
evidence, as there was no eye witness to
the alleged incident. The law on the
appreciation of circumstantial evidence is
also well settled. The circumstances
concerned 'must or should be' established
and not 'may be' established, as held
in Shivaji Sahabrao Bobade & Anr. Vs.
State of Maharashtra, (1973) 2 SCC 793 .
The accused 'must be' and not merely 'may
be' guilty before a court can convict him.
The conclusions of guilt arrived at must be
sure conclusions and must not be based on
vague conjectures. The entire chain of
circumstances on which the conclusion of
guilt is to be drawn, should be fully
established and should not leave any
reasonable ground for the conclusion
consistent with the innocence of the
accused. The five golden principles
enumerated in case of Sharad Birdhichand
R/CR.A/935/1996 JUDGMENT DATED: 02/02/2023
Sarda Vs. State of Maharashtra, (1984) 4
SCC 116 laid down in para 152 may be
reproduced herein for ready reference:
'152. A close analysis of this
decision would show that the
following conditions must be fulfilled
before a case against an accused can
be said to be fully established:
(1) the circumstances from which the
conclusion of guilt is to be drawn
should be fully established.
It may be noted here that this
Court indicated that the
circumstances concerned 'must or
should' and not 'may be' established.
There is not only a grammatical but a
legal distinction between 'may be
proved' and 'must be or should be
proved' as was held by this Court
in Shivaji Sahabrao Bobade v. State
of Maharashtra [(1973) 2 SCC 793 :
1973 SCC (Cri) 1033 : 1973 Crl LJ
1783 ] where the observations were
made : [SCC para 19, p. 807: SCC (Cri)
p. 1047] 'Certainly, it is a primary
principle that the accused must be and
not merely may be guilty before a
court can convict and the mental
distance between may be and must be is
long and divides vague conjectures
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from sure conclusions.'
(2) the facts so established should be
consistent only with the hypothesis
of the guilt of the accused, that is
to say, they should not be explainable
on any other hypothesis except that
the accused is guilty,
(3) the circumstances should be of a
conclusive nature and tendency,
(4) they should exclude every possible
hypothesis except the one to be
proved, and
(5) there must be a chain of evidence so
complete as not to leave
any reasonable ground for the
conclusion consistent with the
innocence of the accused and must show
that in all human probability the act
must have been done by the accused."
20.2.1 From the aforesaid decision rendered by the
Hon'ble Supreme Court, it is clear that the law on
appreciation of circumstantial evidence is well
settled. The circumstances concerned "must or
should be" established and not "may be"
established. The accused "must be" and not merely
"may be" guilty before a court can convict him.
The conclusions of guilt arrived at must be sure
conclusions and must not be based on vague
conjectures. The entire chain of circumstances on
which the conclusion of guilt is to be drawn,
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should be fully established and should not leave
any reasonable ground for the conclusion
consistent with the innocence of the accused.
20.3 In a judgment in case of Ravi Sharma (supra), the
Hon'ble Supreme Court has observed in Paragraph
Nos.13 to 15 as under,
"13. Having accepted the views of the trial
Court holding that the last seen theory has
not been proved, a conviction cannot be
rendered on the basis of evidence, which
was rejected qua motive, through the mouth
of PW2. The trial Court gave its reasons
for rejecting the evidence of PW2. It had
the advantage of seeing and assessing the
demeanor of this witness, which the High
Court did not have. PW2 has stated that
there was a money transaction which led to
a dispute between the accused and the
deceased and that he had assured the
appellant that it would be repaid. This
also occurred few days before the date of
occurrence. When we deal with a case of
circumstantial evidence, as aforesaid,
motive assumes significance. Though, the
motive may pale into insignificance in a
case involving eyewitnesses, it may not be
so when an accused is implicated based upon
the circumstantial evidence. This position
of law has been dealt with by this Court in
the case of Tarsem Kumar v. Delhi
R/CR.A/935/1996 JUDGMENT DATED: 02/02/2023
Administration (1994) Supp 3 SCC 367 in the
following terms:
"8. Normally, there is a motive behind
every criminal act and that is why
investigating agency as well as the
court while examining the complicity
of an accused try to ascertain as to
what was the motive on the part of the
accused to commit the crime in
question. It has been repeatedly
pointed out by this Court that where
the case of the prosecution has been
proved beyond all reasonable doubts on
basis of the materials produced before
the court, the motive loses its
importance. But in a case which is
based on circumstantial evidence,
motive for committing the crime on the
part of the accused assumes greater
importance. Of course, if each of the
circumstances proved on behalf of the
prosecution is accepted by the court
for purpose of recording a finding
that it was the accused who committed
the crime in question, even in absence
of proof of a motive for commission of
such a crime, the accused can be
convicted. But the investigating
agency as well as the court should
ascertain as far as possible as to
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what was the immediate impelling
motive on the part of the accused
which led him to commit the crime in
question. ......."
14. We do find that there is no sufficient link
to come to the irresistible conclusion
pointing the guilt only to the appellant.
We do not wish to multiply the settled
position of law regarding the
circumstantial evidence, except to quote
the following decision in Padala Veera
Reddy v. State of A.P., 1989 Supp (2) SCC
706:
"10. Before adverting to the arguments
advanced by the learned Counsel, we
shall at the threshold point out that
in the present case there is no direct
evidence to connect the accused with
the offence in question and the
prosecution rests its case solely on
circumstantial evidence. This Court in
a series of decisions has consistently
held that when a case rests upon
circumstantial evidence such evidence
must satisfy the following tests:
"(1) the circumstances from which an
inference of guilt is sought to be
drawn, must be cogently and firmly
established;
(2) those circumstances should be of a
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definite tendency unerringly pointing
towards guilt of the accused;
(3) the circumstances, taken cumulatively,
should form a chain so complete that
there is no escape from the conclusion
that within all human probability the
crime was committed by the accused and
none else; and
(4) the circumstantial evidence in order to
sustain conviction must be complete
and incapable of explanation of any
other hypothesis than that of the
guilt of the accused and such evidence
should not only be consistent with the
guilt of the accused but should be
inconsistent with his innocence. (See
Gambhir v. State of Maharashtra
[(1982) 2 SCC 351]."
15. However, once again, we would like to
reiterate the settled position of law that
a mere suspicion, however, strong it may
be, cannot be a substitute for acceptable
evidence, as held in Chandrakant Ganpat
Sovitkar v. State of Maharashtra, (1975) 3
SCC 16.
"16. ......It is well settled that no one
can be convicted on the basis of mere
suspicion, however strong it may be.
It also cannot be disputed that when
we take into account the conduct of an
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accused, his conduct must be looked at
in its entirety. ....."
20.3.1 From the aforesaid decision rendered by the
Hon'ble Supreme Court, it is clear that the
position of law is well settled that mere
suspicion, however, strong it may be, cannot be a
substitute for acceptable evidence and one cannot
be convicted on the basis of mere suspicion.
20.4 In a judgment in case of Sharad Birdhichand Sarda
Vs. State Of Maharashtra, reported in 1984 (4) SCC
116, the Hon'ble Apex Court has observed in
Paragraph Nos.151 and 165 as under,
"151.It is well settled that the prosecution
must stand or fall on its own legs and it
cannot derive any strength from the
weakness of the defence. This is trite law
and no decision has taken a contrary view.
What some cases have held is only this
where various links in a chain are in
themselves complete, then a false plea or a
false defence may be called into aid only
to lend assurance to the Court. In other
words, before using the additional link it
must be proved that all the links in the
chain are complete and do not suffer from
any infirmity. It is not the law that where
there is any infirmity or lacuna in the
prosecution case, the same could be cured
or supplied by a false defence or a plea
which is not accepted by a court.
R/CR.A/935/1996 JUDGMENT DATED: 02/02/2023
165. So far as this matter is concerned, in such
cases the Court must carefully scan the
evidence and determine the four important
circumstances which alone can justify a
conviction :
(1) there is a clear motive for an accused
to administer poison to the deceased.
(2) that the deceased died of poison said
to have been administered.
(3) that the accused had the poison in his
possession.
(4) that he had an opportunity to
administer the poison to the
deceased."
20.5 In a judgment in case of Rahul @ Bablu @ Babu
Sureshbhai Nagardas Panchal (supra), this Court
has observed in Paragraph Nos.10.14 and 10.14.1 as
under,
"10.14 Since this is a matter of
circumstantial evidence, the chain of
circumstantial evidence is required to be
completed, which in the present case is
not, as motive is not established by cogent
evidence, blood stains are not found in the
other part of car, except steering. Though
blow of knife was given by Sagar (juvenile
accused) when deceased was sitting in the
car, even blood group of deceased as well
as appellant accused found common i.e. 'O'
Positive, which was not conclusively
R/CR.A/935/1996 JUDGMENT DATED: 02/02/2023
proved. More over, timing and manner of
recovery of mobile and its cover is also
become doubtful as one witness has deposed
the timing of midnight at 2:00 O'clock and
FSL Officer has deposed the timing of
morning at about 9:30 a.m.
10.14.1 Each and every incriminating
circumstance must be clearly established by
reliable and clinching evidence and the
circumstances so proved must from a chain
of events from which the only irresistible
conclusion about the guilt of the accused
can be safely drawn and no other hypothesis
against the guilt is possible. In a case
depending largely upon circumstantial
evidence, there is always a danger that
conjecture or suspicion may take the place
of legal proof. The Court must satisfy
itself that various circumstances in the
chain of events must be such as to rule out
a reasonable likelihood of the innocence of
the accused. When the important link goes,
the chain of circumstances gets snapped and
the other circumstances cannot in any
manner, establish the guilt of the accused
beyond all reasonable doubts. The Court has
to be watchful and avoid the danger of
allowing the suspicion to take the place of
legal proof, for sometimes unconsciously it
may happen to be a short step between moral
R/CR.A/935/1996 JUDGMENT DATED: 02/02/2023
certainty and legal proof. There is a long
mental distance between "may be true" and
"must be true" and the same divides vague
conjectures from sure conclusions."
21. At this stage, it is also pertinent to note that
the original complainant had challenged the
impugned judgment and order of acquittal by filing
Criminal Revision Application No.342/1996 before
this Court and as observed hereinabove, the
Division Bench of this Court vide order dated
27.01.1997 rejected the said revision application
and thereby confirmed the impugned judgment and
order of acquittal passed by the trial court.
22. It is a cardinal principle of criminal
jurisprudence that in an acquittal appeal if other
view is possible, then also, the appellate Court
cannot substitute its own view by reversing the
acquittal into conviction, unless the findings of
the trial Court are perverse, contrary to the
material on record, palpably wrong, manifestly
erroneous or demonstrably unsustainable. (Ramesh
Babulal Doshi V. State of Gujarat (1996) 9 SCC
225). In the instant case, the learned APP for the
applicant has not been able to point out to us as
to how the findings recorded by the learned trial
Court are perverse, contrary to material on
record, palpably wrong, manifestly erroneous or
demonstrably unsustainable.
23. As observed by the Hon'ble Supreme Court in the
case of Rajesh Singh & Others vs. State of Uttar
R/CR.A/935/1996 JUDGMENT DATED: 02/02/2023
Pradesh reported in (2011) 11 SCC 444 and in the
case of Bhaiyamiyan Alias Jardar Khan and Another
vs. State 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.
24. We have independently re-appreciated the evidence
produced by the prosecution before the learned
Trial Court and also examined the reasoning
recorded by the learned Trial Court while passing
the impugned judgment and order of acquittal and
we are of the view that if in light of the above
circumstances, the learned Trial Court felt that
the accused could get the benefit of doubt, the
said view cannot be held to be illegal, improper
or contrary to law. Hence, even though we are of
the opinion that in an appeal against acquittal,
powers of appellate Court are as wide as that of
the Trial Court and it can review, re-appreciate
and reconsider the entire evidence brought on
record by the parties and can come to its own
conclusion on fact as well as on law, in the the
facts and circumstances of the present case as
R/CR.A/935/1996 JUDGMENT DATED: 02/02/2023
discussed hereinabove, the view taken by the
learned Trial Court for acquitting the accused was
possible and plausible. Therefore, on the basis of
evidence, even if it is to be assumed that the
other view is equally possible, even then it is
well settled and well-established that if two
views are possible on the basis of evidence on
record and one favourable to the accused has been
taken by the learned Trial Court, it ought not to
be disturbed by the Appellate Court.
25. In view of the aforesaid discussion, we are of the
view that the trial court has not committed any
error while passing impugned judgment and order of
acquittal in favour of the respondents - accused
and, therefore, no interference is required in the
present appeal.
26. Accordingly, the present appeal is dismissed.
Record & Proceedings are ordered to be sent back
forthwith.
Sd/-
(VIPUL M. PANCHOLI, J.)
Sd/-
(HEMANT M. PRACHCHHAK, J.)
Gautam
