Gujarat High Court
State Of Gujarat vs Bhaku Khoda Khant on 6 February, 2023
Bench: Hemant M. Prachchhak
R/CR.A/1124/1994 JUDGMENT DATED: 06/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1124 of 1994
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI Sd/-
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
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 ?
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STATE OF GUJARAT
Versus
BHAKU KHODA KHANT & 4 other(s)
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Appearance:
MS JIRGA JHAVERI, PUBLIC PROSECUTOR for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 2
MR KB ANANDJIWALA(134) for the Opponent(s)/Respondent(s) No. 1,3,4,5
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 06/02/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)
1. Being aggrieved and dissatisfied with the
judgment and order, Dated: 06.06.1994, passed by the
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learned Additional Sessions Judge, Gondal ('trial
Court', hereinafter), in Session Case No. 64 of 1990,
whereby, the trial Court acquitted the original
accused Nos. 1 to 5 of the charge of commission of
the offence punishable under Sections 147, 148, 149,
302, 307, 326 and 323 of the Indian Penal Code, 1860
(in brief, 'IPC'), and Sections 37(1) and 135 of the
Bombay Police Act, 1951, the appellant-State has
preferred the present appeal.
2. At the outset, it may be noted that during the
pendency of this appeal, original accused No.2-
appellant No.2 passed away and therefore, this appeal
survives qua original accused-appellant Nos. 1, 3, 4
and 5 only.
3. The brief facts of the prosecution, as was
unfurled before the trial Court, reads thus;
Kanjibhai Veljibhai Khant-PW-16, who happens to be
the real brother of the deceased-Govind Veljibhai,
lodged a complaint with Gondal Police Station on
20.05.1990, wherein, he stated that they are total
three brothers. It is stated in the complaint that
for agricultural purpose the deceased-Govindbhai had
made an application for grant of the land of the
village, which had submerged due to Bhadar Dam.
Pursuant to such application, the deceased-Govindbhai
was allotted about three acres of land, before about
twelve days from the date of alleged incident, for
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agricultural purpose.
3.1 It is, further, stated in the complaint that on
the date of the alleged offence, i.e. on 20.05.1990,
his brother PW-17-Narsibhai had gone to the land,
which was allotted to the deceased-Govindhbhai for
carrying out agricultural activities, and thereafter,
the deceased-Govindbhai had followed him. Later on,
the complainant-PW-16-Kanjibhai also went to the land
allotted to the deceased-Govindbhai.
3.1.1 When, PW-16-Kanjibhai reached the place of
incident, he found that his brother Narsibhai was
ploughing the land and at that time, the original
accused Nos. 1 to 5, i.e. Bhaku Khoda, Mansukh Khoda,
Jeram Khoda, Sukha @ Chana Khoda and Shamji Khoda,
came there and picked-up a quarrel with the deceased-
Govindbhai.
3.1.2 It is stated in the complaint that original
accused No.2-Mansukha and accused No.4-Sukha had
raamp in their hands. It is also stated in the
complaint that the accused No.2-Mansukh told the
deceased-Govindbhai that they are going to finish
them off, today. On hearing the same, the deceased-
Govindbhai replied that he is standing there for
them, i.e. the accused, to attack him.
3.1.3 On hearing the same, accused No.2-Mansukh
inflicted a blow of raamp on the head of the
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deceased-Govindbhai and the deceased-Govindbhai fell
down, there and then. When, PW-16-Kanjibhai tried to
intervene, accused No.4-Sukhabhai inflicted a blow of
ramp on the head of PW-16-Kanjibhai and on account of
that he called his brother-Narsibhai for help, who
was ploughing, and he also fell down. When PW-17-
Narsibhai came to rescue PW-16-Kanjibhai, accused
No.1-Bhaku caught hold of PW-17-Narsibhai and accused
No.4-Sukhabhai inflicted a blow of ramp on the head
of PW-17-Narsibhai.
3.1.4 It is, further, stated in the complaint
that, when the brother of his uncle, namely Kadvabhai
Khimabhai-PW-18, who was ploughing the land of the
deceased-Govindbhai, came at the place of occurrence,
he was also attacked by the accused persons. However,
the complainant did not state in his complaint, as to
who beat PW-18-Kadvabhai.
3.1.5 It is, further, stated in the complaint that
after the complainant-Kanjibhai fell down, accused
Nos. 3 and 5, who had sticks in their hands, started
beating the deceased-Govindbhai and PW-18-Kadvabhai.
Pursuant thereto, on hearing the commotion, since,
Mavjibhai Nanjibhai and Rasik Nanjibhai-PW-PW-14, who
were working in the nearby filed, came to the place
of incident, whereupon, the accused persons fled the
scene of offence.
3.1.6 Pursuant thereto, the tractor of one Manji
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Madhabhai was called from the village and the
complainant-PW-16-Kanjibhai and PW-17-Narsibhai were,
firstly, taken to Navagam and from there, they were
taken to Gomta Government Dispensary in the matador
of one Nanji Motibhai, where,after giving primary
treatment to them, they were referred to Civil
Hospital, Rajkot. It is stated in the complaint by
the complainant-Kanjibhat that, since, his brother
Govindbhai had passed away on the spot, his dead-body
was kept there.
3.2 After the registration of the FIR, the
Investigating Officer carried out the investigation
and since, sufficient evidence were found against all
the accused persons, he filed the charge-sheet before
the Court of the learned JMFC, Gondal. However,
since, the case was exclusively triable by the Court
of Sessions, the learned JMFC carried out the
necessary procedure under Section 209 of the Code of
Criminal Procedure, 1973 ('the Code', in short), and
committed the case before the trial Court.
3.3 Before the trial Court, in order to bring home
the charges leveled against all the accused persons,
the prosecution examined the following witnesses;
Sr. Name Of The Witness Prosecution Exhibit
No. Witness Number
Number
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Durlabhji Indrodia
Pushkarray Buch
Narsibhai Savaliya
Shukal
Manilal Patel
Gajrajsinh Jadeja
Dabhi
Chudasama
Lakhmanbhai
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Parmar
Devshankar Dave
Teraiya
Govindbhai Patel
Lakshmanbhai Desai
3.4 Over and above the same, the prosecution also
produced the following documentary evidences;
Sr. Particulars of the Document Exhibit
No. Number
and 5
2. Panchnama Seizure of clothes of the 38, 39
accused
put on by the witness-Kadvabhai, at
the time of incident,
put on by the accused-Bhaku @ Bhavsing
Khoda, at the time of incident,
put on by the accused-Mansukh Khoda,
at the time of incident,
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put on by the complainant-Kanji Velji
, at the time of incident,
put on by the witness-Narsi Velji, at
the time of incident,
Khoda
Mansukh Khoda
put on by the deceased-Govindbhai, at
the time of incident,
issued by PHC
issued by PHC, Gomta
PHC
issued by PHC, Gomta
Govindbhai
issued by Civil Hospital, Rajkot
issued by Civil Hospital, Rajkot
19. Indoor Medical case papers of Kanji 63, 64,
Rajkot
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20. X-ray report and X-ray plates of Kadva 66, 67,
21. Outdoor and Indoor Medical case papers 69, 70,
of Narsi Velji issued by Civil 71, 72,
22. Injury certificate and medical case 78, 79
papers of Mansukh Khoda issued by
Civil Hospital, Rajkot
23. Outdoor, Indoor Medical case papers 80, 81,
issued by Civil Hospital, Rajkot
24. Indoor medical case papers and X-ray 84, 85
report of Mansukh Khoda issued by
Civil Hospital, Rajkot
produced by the accused-Mansukh Khoda
produced by the accused- Bhaku Khoda
28. Medical case papers, injury 115, 116,
certificates and hospital transfer 117, 119,
papers of the witnesses, Narsi Velji, 120, 121,
Kanji Velji and Kadva Khima 122, 123,
29. Medical certificates of Bhaku and 125, 126
Mansukh Khoda issued by Gondal
Hospital
30. Injury certificate and X-ray report of 130 to
31. Medical case papers, injury 139 to
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witness-Narsi Velji
land to the deceased-Govindbhai for
agricultural purpose
of the land at Bhadar Dam to the
deceased-Govind
Gram Panchayat, with regard to handing
over the land to the concerned persons
35. Copies of Exhibits-152 and 153 155, 156
demand
37. Receipts towards payment 165, 166
38. Order of the Mamlatdar, Gondal, 168 to
memorandum sent for preparing the map
of the place of the offence and map of
the place of offence
to sending of map of the place of
offence
Hospital Chowky, Pradyumnanagar Police
Station, Rajkot
41. The extract of Entry No. 14/90 and 191, 192
15/90 of Diary entry dated 20.05.1990
of Pradyumnanagar Police Station,
Rajkot
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Hospital Chowky, Rajkot, to the
Executive Magistrate for recording DD
45. Dying declaration of Narsi Velji and 199, 200
Kanji Velji
Constable, Hospital Chowky, Rajkot, to
record DD
48. The extract of Gondal Police Station 206, 207,
Diary Entry Nos. 10, 11, 5 and 6 215, 216
Diary of Civil Hospital Chowky, Rajkot
photocopy of Entry No.5 of Station
Diary of Civil Hospital Chowky, Rajkot
clothes of the deceased-Govindbhai
the FSL, while sending the muddamal
articles,
55. Report of the FSL, Junagadh 226, 227
3.5 On completion of the recording of the evidence,
the trial Court recorded the further statements of
the accused, under Section 313 of the Code, wherein,
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all the accused-opponents, herein, denied their
involvement in the commission of the alleged offence
and stated that a false complaint is filed and that
they have been falsely implicated in the offence in
question.
3.6 After hearing the arguments advanced by the
learned Advocates on both the sides and after
perusing the material on record, the trial Court
passed the impugned judgment and order, acquitting
all the accused of the charges, as referred to in
Paragraph-1, herein above.
Hence, the present appeal.
4. Learned APP, Ms. Jhaveri, appearing for the
appellant-State mainly contended that the prosecution
produced sufficient documentary as well as the oral
evidence before the trial Court in regard to the
incident, which took place on 20.05.1990, wherein,
one Govindbhai succumbed to the injuries sustained by
him, whereas, the complainant, Kanji Velji-PW-16, PW-
17-Narsibhai and Kadvabhai-PW-18 received grave
injuries.
4.1 It was submitted that the injuries sustained by
PW-16-Kanjibhai and others are supported by the
medical evidence as well as the evidence of
independent witness and the evidence of doctors.
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4.2 It was also submitted that the prosecution
witness, namely Dr. Mansukh-PW-4, who had performed
post mortem on the body of Govindbhai, had deposed
before the trial Court that injury Nos. 1 to 4 found
by him on the body of the deceased-Govindbhai were
ante mortem in nature and the death of Govindbhai was
homicidal one. By referring to the same, it was
submitted that the trial Court ought to have held
that the prosecution proved the charge under Section
302 of the IPC, beyound reasonable doubt.
4.3 It was, further, submitted that the weapons,
i.e. raamp and sticks, which were allegedly used in
the commission of the offence, were identified by the
doctor before the trial Court and he had opined that
the injuries found by him on the body of the
deceased-Govindbhai could be caused by such weapons.
It was, therefore, submitted that the doctor fully
supported the case of the prosecution.
4.4 Learned APP, Ms. Jhaveri, then, submitted that
the private doctor, namely Dr. Shukla-PW-10, had
stated before the trial Court that the injuries
sustained by the witnesses were serious in nature and
thereby, Dr. Shukla-PW-10 also supported the case of
the prosecution.
4.5 Learned APP, Ms. Jhaveri, submitted that PW Nos.
11 and 12, who were Revenue Officers, have also
supported the case of the prosecution, by producing
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the relevant documentary evidence. It was submitted
that PW Nos. 11 and 12 stated, on oath, before the
trial Court that the District Collector, Rajkot, had
allotted the land in question to the deceased-
Govindbhai and therefore, the evidence of these
witnesses prove the case of the prosecution, with
regard to the cause or motive for commission of the
alleged offence.
4.6 It was also submitted that, during the course of
commission of the alleged offence, accused No.1-Bhaku
and accused No.2-Mansukh had also sustained severe
injuries and therefore, the trial Court ought to have
held that the presence of accused Nos. 1 and 2, at
the place of offence, is successfully proved by the
prosecution.
4.7. Learned APP submitted that the prosecution
examined the first informant, i.e. Kanjibhai, as PW-
16, who had sustained injuries at the time of
commission of the alleged offence, and PW-16
categorically narrated the role played by each of the
accused before the trial Court and thereby, he fully
supported the case of the prosecution.
4.8 Learned APP, Ms. Jhaveri, therefore, submitted
that the oral as well as the documentary evidences
adduced by the prosecution fully proves its case
beyound reasonable doubt and therefore, the impugned
judgment and order passed by the trial Court deserves
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to be quashed and set aside.
5. On the other hand, learned Advocate, Mr.
Anandjiwala, appearing for the opponents-original
accused supported the judgment and order of acquittal
passed by the trial Court and vehemently opposed this
appeal.
5.1 It was submitted that there are serious
infirmities and contradictions in the case of the
prosecution and therefore, the trial Court has
rightly held that the prosecution has failed to prove
its case beyound reasonable doubt.
5.2 Learned Advocate, Mr. Anandjiwala, submitted
that the trial Court rightly noted that the witnesses
improved and exaggerated their versions, while giving
evidence before it, and that the prosecution also
suppressed the genesis of the crime in question.
5.3 It was submitted that the trial Court also
rightly noted that the prosecution failed to examine
the material witnesses and therefore, the trial Court
committed no error in passing the impugned judgment
and order.
5.4 Learned Advocate, Mr. Anandjiwala, submitted
that the prosecution miserably failed to explain the
injuries sustained by the accused persons and the
same causes, serious doubts about the case put forth
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by the prosecution.
5.5 Learned Advocate, Mr. Anandjiwala, submitted
that it is a clear case of free fight between two
sides, where, the prosecution witnesses have not
stated, as to how the incident actually took place
and as to how the accused persons sustained injuries.
Hence, the trial Court has rightly not believed the
case of the prosecution.
5.6 Learned Advocate, Mr. Anandjiwala, submitted
that even the FIR was registered at a belated stage,
though, there were ample opportunities to register
the same, at the earliest.
5.7 Learned Advocate, Mr. Anandjiwala, submitted
that it is the settled principle of law that in an
acquittal appeal, if, there are two views possible,
then, the view, which is favourable to the accused
person, is to be taken or adopted. It was, therefore,
submitted that the trial Court committed no error in
passing the impugned judgment and order and hence,
this appeal may be dismissed.
6. We have heard the learned Advocates for the
parties and also perused the material on record and
we are of the considered opinion that there is no
error, much less any illegality, committed by the
trial Court in passing the impugned judgment and
order for the reasons set out, herein below.
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6.1 It is true that the accused persons did not
challenge the occurrence of the alleged offence.
However, when the manner, in which the actual
incident took place or the actual cause or genesis of
the offence in question has not come on record, and
though, there were ample opportunities with the
prosecution witnesses to explain or to state the
occurrence of the offence and when they have not done
the same, the case of the prosecution cannot be
believed.
6.2 We have noticed that the prosecution witnesses
failed to explain, as to how the injuries were caused
to the accused persons, though, the same were serious
in nature. The doctor examined by the prosecution
clearly stated that accused Nos. 1-Bhaku and 2-
Mansukh had sustained injuries on the head and the
same were serious in nature and one of the accused
had also sustained fracture injury. Thus, non-
explanation of the injuries sustained by the accused
persons, on the part of the prosecution would create
serious doubt about the case put forth by it before
the trial Court.
6.3 Here, it is also relevant to note that the
alleged incident took place on 20.05.1990, at about
08:00 a.m. in the agricultural field, which is in the
occupation and possession of the accused persons,
though, the same was disputed by the complainant side
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by saying that the said land was allotted to the
deceased-Govindbhai by the Collector before about two
weeks from the date of the incident. However, there
is nothing produced on the record to prove the claim
of the complainant side. Hence, the trial Court
rightly did not believe the case of the prosecution
that the deceased-Govindbhai was allotted the land by
the Collector.
6.3.1 Now, in regard to the above, if, we examine
the evidence of the Revenue Officer, who were
examined by the prosecution as PW Nos. 11 and 12, it
is revealed that both these witnesses were unable to
prove or show that, in fact, there was an official
order granting the land in question in favour of the
deceased-Govindbhai.
6.3.2 So far as the document containing Rojkam,
Exhibit-156, of handing over the possession of the
land in question to the deceased-Govindbhai is
concerned, the trial Court noted that the document,
Exhibit-156, neither bear any inward or outward
number nor did it bear the signature of either
Mamlatdar or Deputy Mamlatdar. Thus, there is a
serious doubt with regard to the ownership of the
place of occurrence and the prosecution failed to
prove the actual place of incident and as to who is
the actual owner of the said land. Thus, the trial
Court rightly did not believe the document, Exhibit-
156.
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6.3.3 We also notice that the prosecution also
failed to examine some material witnesses, like
Surta, who happens to be the daughter of PW-18-
Kadvabhai and who had informed Babu Vela about the
alleged offence. The prosecution offered no
explanation for not citing Surta, as one of the
witnesses. Moreover, other key-witnesses were also
not examined by the prosecution, which would raise
doubts about the case of the prosecution.
6.4 We also notice that there are also material
contradictions in the evidence of the expert
witnesses and the documentary evidences produced by
the prosecution. It is on account of such
inconsistencies and defects in the case of the
prosecution that the trial Court observed that the
case of the prosecution cannot be believed, since,
certain important witnesses were not examined by the
prosecution and the material witnesses, which were
examined by the prosecution not only tried to
exaggerate but they also tried to improve their case.
The trial Court, hence, rightly not relied on such
evidences.
6.5 Insofar as, the weapons, which were allegedly
used in the commission of the offence, is concerned,
from the close scrutiny of the evidence of the
doctors and other documentary evidences, it becomes
clear that the same were mere agricultural
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instruments, i.e. raamp or khampari, and it was not
possible to cause injuries, which were sustained by
the deceased and some of the other injured witnesses.
Dr. Mansukhlal-PW-4, who had carried out post mortem
of the body of the deceased-Govindbhai, in his
deposition before the trial Court, clearly stated
that the injuries noticed by him on the body of the
deceased were possible with sharp edged weapon. Thus,
it becomes clear that the injuries found on the body
of the deceased-Govindbhai could not have been caused
by the weapons, which were seized by police, i.e.
raamp or khampari and sticks.
6.6 Here, it is also pertinent to note that it has
not come on record, as to who had taken the deceased-
Govindbhai to the hospital from the place of
occurrence. In fact, PW-13-Jivraj Ruda, who had taken
the injured PW-16-Kanji, PW-17-Narsi and PW-18-
Kadvabhai to hospital, stated that, since, they
thought that the deceased-Govindbhai was no more,
they did not take him to hospital and let him lye at
the place of occurrence, as it is.
6.6.1 Further, According to PW-13-Jivraj his
statement was recorded at Civil Hospital, Rajkot.
Now, at Paragraph-12 of his cross-examination, PW-13-
Jivraj Ruda stated that it was his own decision that
injured Govind was to be left at the place, where he
was lying. PW-13, further, stated that it was his own
decision that injured Govind was no more. Further, at
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Paragraph-13 of his cross-examination, PW-13-Jivraj
stated that on reaching the village, he neither
informed anybody about the alleged incident nor did
he ask anybody to go to the place of incident and
fetch the injured Govindbhai. Such a conduct on the
part of PW-13-Jivraj does not appear to be natural or
normal. Thus, considering the nature of evidence of
PW-13, the trial Court has rightly not believed the
same.
6.7 Moreover, the prosecution also tried to prove
its case by relying on the evidence of PW-19-Bhanu
Kadvabhai, who posed herself as the eye-witness.
However, when the evidence of PW-19 is examined in
the light of evidence of other witnesses, it becomes
clear that she could not have witnessed the
occurrence by herself.
6.8 Further, the evidence of PW-15-Babu Vela, who
happened to be the brother of the deceased-Govindbhai
and who was discharging duties as Talti-Cum-Mantri at
Bandhiya village, at the relevant point of time,
reveals that, though, he received the information
about the alleged offence, neither he tried to lodge
an FIR nor did he tried to give his statement to the
police. The prosecution has not explained such a
conduct on the part of PW-15-Babu Vela.
6.9 We also notice that there are a number of
inter se contradiction in the evidence of PW-16-Kanji
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Velji, PW-17-Narsi Velji and PW-18-Kadva Khima and
therefore, the trial Court rightly did not believe
the evidence of these witnesses.
6.10 At this stage, it would be relevant to refer
to the observations made by the Apex Court with
regard to the powers of the appellate Court, while
dealing with an appeal against an order of acquittal,
in 'CHANDRAPPA AND OTHERS VS. STATE OF KARNATAKA',
reported in (2007) 4 SCC 415, which reads as under;
"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, re-
appreciate and reconsider the evidence upon which
the order of acquittal is founded;
(2) The Codeof 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 emphasize 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 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."
6.11 The Division Bench of this Court also took
the similar view in Criminal Appeal No. 267 of 2022,
where, at Paragraphs-10 and 12, it is observed thus;
"10. 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
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.
11. In the case of Ram Kumar v. State of Haryana, reported
in AIR 1995 SC 280, Supreme Court has held as under:
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"The powers of the High Court in an appeal from order of
acquittal to reassess the evidence and reach its own
conclusions under Sections 378 and 379, Cr.P.C. are as
extensive as in any appeal against the order of
conviction. But as a rule of prudence, it is desirable that
the High Court should give proper weight and
consideration to the view of the Trial Court with regard to
the credibility of the witness, the presumption of
innocence in favour of the accused, the right of the
accused to the benefit of any doubt and the slowness of
appellate Court in justifying a finding of fact arrived at by
a Judge who had the advantage of seeing the witness. It
is settled law that if the main grounds on which the lower
Court has based its order acquitting the accused are
reasonable and plausible, and the same cannot entirely
and effectively be dislodged or demolished, the High
Court should not disturb the order of acquittal."
12. 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 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."
6.12 It is the 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
R/CR.A/1124/1994 JUDGMENT DATED: 06/02/2023
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.
6.13 In the instant case, the learned APP for the
appellant has not been able to point out, 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.
6.14 As observed by the Hon'ble Supreme Court in
the case of 'CHANDRAPPA AND OTHERS' (Supra), while
dealing with the judgment of acquittal, unless
reasoning given by the learned trial Court is found
to be perverse, the acquittal cannot be set aside. It
is further observed that High Courts' interference in
such appeals is 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.
6.15 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
R/CR.A/1124/1994 JUDGMENT DATED: 06/02/2023
are of the view that, if, in the light of the above
circumstances, the learned Trial Court felt that the
accused could get the benefit of doubt, such a 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 facts as well as on
law, in the the facts and circumstances of the
present case, as discussed herein above, the view
taken by the learned Trial Court for acquitting the
accused seems to be 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.
6.16 Considering the aforesaid facts and
circumstances of the present case and the law laid
down in the aforesaid decisions, upon which the
reliance is placed by the learned advocates appearing
for the parties, and while considering the scope of
appeal under Section 378 of the Code, no case is made
out for interference in the impugned judgment and
order of acquittal passed by the concerned Trial
R/CR.A/1124/1994 JUDGMENT DATED: 06/02/2023
Court. In view of the above discussion, we are of the
considered view that the trial Court has committed no
error in passing the judgment and order of acquittal
in favour of the opponent-original accused.
7. Resultantly, the present appeal fails and is
DISMISSED, accordingly. The judgment and order,
Dated: 06.06.1994, passed by the learned Additional
Sessions Judge, Gondal, in Session Case No. 64 of
1990 is, hereby, CONFIRMED.
7.1 Bail bonds executed by the opponent-accused
stands DISCHARGED.
7.2 Registry is directed to sent back R&P, if any,
to the concerned trial Court, forthwith.
Sd/-
(VIPUL M. PANCHOLI, J)
Sd/-
(HEMANT M. PRACHCHHAK,J)
UMESH/-
