State Of Gujarat vs Habib Khamisha Dal, Sandhi
2023 Latest Caselaw 491 Guj

    R/CR.A/540/1996                                  JUDGMENT DATED: 17/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO.       540 of 1996


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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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
                          HABIB KHAMISHA DAL, SANDHI
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Appearance:
MR CHINTAN DAVE, APP for the Appellant(s) No. 1
MR BIPIN BHATT for the Opponent(s)/Respondent(s) No. 1
MR PM LAKHANI for the Opponent(s)/Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
          and
          HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                              Date : 17/01/2023

                        ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)

R/CR.A/540/1996 JUDGMENT DATED: 17/01/2023

1. This appeal, under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code' for short), is filed by the State challenging the judgment and order dated 16.04.1996 rendered by learned Sessions Judge, Jamnagar in Sessions Case No.126 of 1994 whereby the concerned Sessions Court has acquitted the respondent - accused.

2. Heard Mr. Chintan Dave, learned APP for the appellant - State and Mr. P. M. Lakhani, learned advocate for the respondent - accused.

3. The prosecution case, in brief, is as under:

3.1. "The deceased Mariumben was married to the accused before about three years and after marriage, the accused husband used to pick-up quarrels with her and used to torture her physically and mentally. However, the deceased used to bear all such tortures with the hope that everything will be okay in future. The accused used to drive her out from the house and therefore, she used to go away at her parents' place. She was taken back by the accused after compromise when he was persuaded by the father of the deceased. At the time when this incident took place, she was staying with her husband in the house which is situated adjacent to the house in which her parents were staying. Before lodging of this complaint, she was admitted in the hospital on account of severe

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pain in the abdomen and she was operated upon and she was discharged from the hospital eight days before lodging of this complaint and she was staying along with her husband in the house. On the previous day of the incident, at about 12-00 at night, her husband Habib returned from service and slept without taking food. On the day of incident, he got up at 7 O'clock in the morning and after taking tea, went away on his vehicle in vegetable market. He came back at about 8- 00 to 8-30 a.m. and asked her for preparation of breakfast. The deceased prepared breakfast and he took breakfast and then picked up quarrel with her saying that he would get a number of women like her and he took the kerosene from the primus which was lying at the place where she was sitting and poured it in her lap and set her on fire by throwing a burning match stick on her, while smoking, as a consequence of which she was burnt. When she raised shouts "save me.... save me...." her husband poured a bucket of water and extinguished fire set on her. She continued raising shouts and on hearing such shouts, her husband told her to tell her parents to take her to the hospital and he himself went away abusing her. By that time, her father came there and took her in the hospital. She was under treatment and she was fully conscious. During the treatment in Irwin Hospital, she succumbed to the burn injuries at about 4-50 p.m. ON 24.06.1994."

4. After the registration of the FIR, the

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investigating agency carried out the investigation and collected the evidence against the present respondent - accused. Thereafter charge-sheet was filed before the concerned Magistrate Court. The concerned Magistrate Court committed the case to the learned Sessions Court under Section 209 of the Code and Sessions Case No.126 of 1994 was registered before the Sessions Court, Jamnagar.

5. Before the Trial Court, charge Exh.2 came to be framed against the respondent - accused and thereafter plea of the respondent - accused came to be recorded. During the course of trial, the prosecution examined 12 witnesses, whereas the respondent - accused examined Defence Witness Dr. Nilesh Keshavji Kalaiya vide Exh.44. The prosecution also produced documentary evidence. Similarly, respondent - accused also produced documentary evidence through Defence Witness No.1. After considering the documentary as well as oral evidence, which were placed before the learned Trial Court, the learned Trial Court passed the impugned judgment and order, whereby, the present respondent - accused came to be acquitted. The State has, therefore, preferred present appeal before this Court.

6. Learned APP Mr. Chintan Dave has referred to the depositions given by the prosecution witnesses and thereafter mainly placed reliance upon the depositions given by P.W.1 - Dr. Sudhirbhai Gulabbhai

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Mehta at Exh.6 and P.W.3 - Ranchod Veljibhai Khandharia at Exh.11. Learned APP has also referred the deposition given by P.W.4 - Dr. Satishkumar Shri Puranchand Kumar at Exh.15 as well as the deposition given by P.W.5 - Allarakkha Jumabhai Sama (father of the deceased) at Exh.18. Learned APP, thereafter, referred the Dying Declaration of the deceased which was recorded by PW.3 - Deputy Executive Magistrate at Exh.14. At the same time, learned APP has also referred the Yadi sent by the concerned police officer to the Executive Magistrate requesting him to record the Dying Declaration of deceased Mariumbibi.

7. After referring to the aforesaid documentary as well as oral evidence produced by the prosecution, learned APP contended that PW 1 - Dr. Sudhirbhai Gulabbhai Mehta has specifically deposed that the deceased was semi-conscious between 12:00 to 2:00 p.m. and thereafter she was fully conscious. The deceased was capable of giving her statement and therefore the learned Trial Court has committed an error while discarding the dying declaration recorded by PW 3 - Deputy Executive Magistrate. It is also contended that when the concerned police authority has sent Yadi to the Executive Magistrate requesting him to visit the hospital for recording dying declaration of the deceased, the concerned Doctor has specifically made an endorsement that the patient is conscious. It is submitted that thereafter the PW 3 recorded dying declaration of the deceased and

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therefore there was no reason for the learned Trial Court to disbelieve such dying declaration recorded by the independent witness. It is further submitted that the respondent accused has not alleged anything against the said Deputy Executive Magistrate that with mala fide intention he has tried to favour the father of the deceased and in absence of such allegation, the learned Trial court has committed an error while discarding the said dying declaration recorded by PW 3.

8. Learned APP would thereafter submit that PW 3 - Deputy Executive Magistrate has specifically stated in his deposition that the deceased was conscious at the time of recording her dying declaration and the dying declaration was recorded between 13:05 hours to 13:20 hours. The said witness has also taken the thumb impression of the deceased after recording her dying declaration. It is submitted that the learned Trial Court has wrongly discarded the dying declaration on the ground that the same was recorded between 12:00 p.m. to 2:00 p.m. when the deceased was semi-conscious.

9. Learned APP further submits that even the learned Trial Court has believed the presence of the respondent accused at the time of incident and held that the respondent had left the place of incident after the deceased set ablaze. Learned APP, therefore, urged that when the findings recorded by

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the learned Trial Court are perverse, the order of acquittal passed by the learned Trial Court be quashed and set aside and the respondent - accused be convicted for the offence punishable under Section 302 and 498A of the Indian Penal Code.

10. Learned APP has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of State of Uttar Pradesh v. Veerpal and another, reported in (2022) 4 SCC 741. Learned APP has more particularly relied upon paragraph 11, 15, 16 and 18 of the said decision.

10.1. After referring to the aforesaid decision, it is submitted that if the Court is satisfied that the dying declaration recorded by the Executive Magistrate is true and voluntary then this Court can pass an order of conviction relying upon the dying declaration only without any corroboration.

10.2. Learned APP thereafter has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Edmund S. Lyngdoh v. State of Meghalaya, reported in (2016) 15 SCC 572, and more particularly relied upon paragraph Nos. 21 and 22 of the said decision.

10.3. After referring to the said paragraphs, learned APP submitted that the statement of the accused recorded under Section 313 of the Code can be

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considered for considering the stand or version of the accused. It is submitted that in the present case the accused has admitted that he was present at the time of incident along with his wife i.e. the deceased. However, thereafter the respondent - accused left the house. It is submitted that though the learned Trial Court has observed that the respondent accused was present in the house at the time of incident, the learned Trial Court has not properly appreciated the statement of the accused recorded under Section 313 of the Code.

10.4. Learned APP has, thereafter, placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Prithipal Singh and others v. State of Punjab and another, reported in (2012) 1 SCC 10, and more particularly, relied on para 49 and 52 of the said decision. Learned APP has also placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Laxman v. State of Maharashtra, reported in (2002) 6 SCC 710.

11. Learned APP, therefore, urged that the present appeal filed by the State be allowed and the impugned judgment and order passed by the concerned Trial Court acquitting the respondent - accused be quashed and set aside.

12. On the other hand, learned advocate Mr. P. M. Lakhani appearing for the respondent - accused has

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opposed this appeal. Learned advocate Mr. Lakhani has mainly contended that the case of the prosecution is solely based upon three dying declarations of deceased Mariumben; first one is in the form of dying declaration given by her before the Executive Magistrate - Exh. 14, oral dying declaration of the deceased given before her father i.e. Allarakhabhai, who was examined by the prosecution as PW 5 - Exh.18 and the third one is in the form of FIR given by the deceased at Exh.47.

12.1.At this stage, learned advocate Mr. Lakhani would submit that the prosecution has ignored the first version given by the deceased herself in the form of medical history given before the doctor when she was brought to the hospital. It is submitted that the deceased herself has, in the medical history given before the doctor, specifically stated that because of the fact that she was having pain in abdomen and she was operated/treated prior to few days from the date of incident, she committed suicide by pouring kerosene on herself and thereafter set her on fire. Learned advocate, therefore, contended that the learned Trial Court has rightly believed the first version given by the deceased herself before the independent witness like doctor by giving medical history.

13. Learned advocate Mr. Lakhani thereafter contended that PW 1 - Dr. Sudhirbhai Mehta - Exh.6

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has, in his cross-examination, specifically stated that the deceased was unconscious between 12:00 p.m. to 2:00 p.m. and she was not in a position to give any statement and during that period she was not even in a position to speak, hear or understand anything. It is further submitted that the dying declaration was recorded by the Executive Magistrate between 13:05 hours to 13:20 hours and even as per the case of the prosecution, the FIR was given by the deceased between 13:30 hours to 14:15 hours. Learned advocate at this stage has also referred the deposition given by the Defence Witness No.1 - Dr. Nilesh Keshavji Kalaiya - Exh.44. The said witness has produced the medical papers including the history given by the deceased vide Exh.45.

14. Learned advocate, therefore, urged that the learned Trial Court has rightly discarded the dying declaration as well as the FIR given before the police during the period between 12:00 to 2:00 p.m. as the patient/deceased was unconscious during the said period. Learned advocate at this stage has also referred the observations made by the learned Trial Court in para 20 of the impugned judgment and order and thereafter contended that the oral dying declaration given by the deceased before her father is rightly discarded by the learned Trial Court as there was strain relationship between the father of the deceased and the respondent - accused.

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15. Learned advocate Mr. Lakhani further submits that even in the Yadi Exh.13 given by the concerned police authority to the Executive Magistrate, though there is an endorsement that the patient is conscious, it is not clear that who has made such an endorsement on the said Yadi. Name of the concerned Doctor is also missing. It is further submitted that the prosecution has also not examined the concerned person who has made such an endorsement.

16. Learned advocate Mr. Lakhani has placed reliance upon the following decisions:

1. In case of Umakant and another v. State of Chattisgadh, reported in (2014) 7 SCC 405;

2. In case of Maniben Mirabhai v. State, reported in 2002 (2) GLR 1662;

3. In case of Chandrappa v. State of Karnataka, reported in AIR (SC) 2007 0 111; and

4. In case of Basappa v. State of Karnataka, reported in AIR SC(Cri) 2014 0 901.

17. Learned advocate Mr. Lakhani, therefore, urged that when the deceased herself has given different versions as per the case of the prosecution before different persons/authorities and when two views are

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possible, the learned Trial Court has not committed any error while passing the impugned judgment and order of acquittal relying upon the oral dying declaration given by the deceased before the Doctor in the form of medical history. Thus, the judgment and order passed by the learned Trial Court cannot be termed as perverse. Hence, there is limited scope of interference in the present acquittal appeal filed by the State. Learned advocate, therefore, requested that this appeal be dismissed.

18. We have considered the submissions canvassed by learned advocate appearing for the parties. We have also perused the material placed on record and the evidence produced before the learned Trial Court.

19. PW 1 - Dr. Sudhirbhai Gulabbhai Mehta - Exh.6 has stated in his deposition that he was working as an Associate Professor in Irvin Hospital in Surgery Department. The said Doctor brought the papers of MLC Case No.2197 of 1994 with him. It is stated that Mariumben Allarakha was brought to the hospital on 19.06.1994 at about 10:35 a.m. She was having 35% burn injuries and she died on 24.06.1994 at 4:50 p.m. In his examination-in-chief, the said witness has specifically stated that during the period between 12:00 p.m. to 2:00 p.m. the patient was unconscious. During the cross-examination of the said witness, once again, the said witness has specifically stated that during the period between 12:00 p.m. to 2:00

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p.m. the patient was unconscious and she was not in a position to give any statement and during the said period she was not even in a position to speak, hear or understand anything. Between 2:00 to 3:00 p.m. she became semi-conscious and she was in a position to speak.

20. P.W.2 - Pinakin Dhanabhai Makwana - Exh.7 was working as Circle Inspector in the office of City Mamlatdar, Jamnagar who has prepared the map of the place of incident.

21. P.W.3 - Ranchod Veljibhai Khandharia - Exh.11 is the Prosecution Witness on whom the prosecution has mainly placed reliance. The said witness was working as Deputy Mamlatdar in the office of Mamlatdar. He received Yadi- Exh.12 for the purpose of recording dying declaration of Mariumben, who was admitted in Irvin Hospital. Pursuant to the said Yadi, the said witness visited Irvin Hospital. The said witness further stated that he visited the ward of Dr. Shukla where Mariumbai was admitted. He had given introduction to in-charge Doctor of the said ward and informed him to endorse as to whether the patient is conscious or not and the concerned Doctor has made an endorsement and also made signature. It is further stated that the said Doctor has also written time and date on said endorsement. The said witness further stated that the patient was conscious and therefore he asked her about the incident and she specifically

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stated the manner in which the incident took place. After the dying declaration was recorded, thumb impression of the deceased was obtained and the said witness also put his signature. The said witness further stated that dying declaration was recorded between 1:05 p.m. to 1:20 p.m.

22. P.W.4 - Dr. Satishkumar Shree Puranchand Kumar - Exh.15 was working as Assistant Professor in Forensic Department of M.P. Shah Medical College. The said witness has conducted the postmortem of the deceased. The said doctor in his deposition has narrated about the injuries sustained by the deceased.

23. P.W.5 - Allarakha Jumabhai Sama - Exh. 18 is the father of the deceased who brought the deceased to the hospital after the incident in question took place. As per the deposition of the said witness, he brought the deceased in rickshaw. Before the said witness, as per the case of the prosecution, the deceased gave oral dying declaration, wherein, she has stated that on the date of incident the respondent accused poured kerosene on her and thereafter set her on fire. The said witness, in the cross-examination has stated that when he reached the place of incident, other neighbours also gathered there.

24. The other witnesses are the Panch Witnesses and learned APP has not placed reliance upon the

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depositions of other witnesses.

25. The dying declaration Exh.14 recorded by the Executive Magistrate reads as under:

"My Name :

Mariyamben, Husband's Name:

Habib, Father's Name : Alarakha, Caste:

Sandhi, Age: 21 years, Residing at: Near Ghanchi na Kabrastan, Jamnagar.

I was at my home at around ten o'clock in morning. My husband is working as a driver. My husband came home at around twelve o'clock in night yesterday. Today, he wake up and take breakfast in morning. Earlier, when I was sick, at that time his mother - my mother-in-law came to see me at hospital. She did not talk with me, however, I talked with her. Despite this, my husband told me that why don't you talk with my mother. By saying this, my husband used to quarrel. After taking breakfast today morning, he began to speak arbitrarily and said that many women like you are available. I told him not to harass me since operation has been performed on my body. Thereafter, my husband stood up and took out kerosene from the primus and poured it on me when I was sitting and he lit up a matchstick and set ablaze with a burning matchstick from a distance while smoking beedi. I began to burn and when I shouted 'save me....save me', my husband poured water on me from a pot of water. Thereafter, after opening the door, he told me that go and tell your mother to take you to hospital. After saying this, my husband left home.

My elder daughter was playing outside and the younger daughter was sleeping in the cradle when this incident took place. No other person was present at home.

My father lives near us and he and my

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mother admitted me in this hospital for treatment.

All the aforesaid facts have been written as dictated by me are true and correct. I do not want to say anything further. My relatives or any other person are not present near my bed when the said facts have been dictated."

26. The said dying declaration was recorded between 1:05 p.m. to 1:20 p.m. and thereafter the FIR Exh.47 was given by the deceased between 13:30 p.m. to 14:15 p.m.

27. Thus, based on the aforesaid evidence, the case of the prosecution is that there are three dying declarations given by the deceased; first in the form of dying declaration at Exh.14 recorded by the Executive Magistrate, second is in the form of FIR Exh.47 given by the deceased and third is in the form of oral dying declaration given by the deceased before her father - PW 5 - Allarakhabhai.

28. However, this Court has examined the medical papers produced vide Exh.45 through Defence Witness No.1 - Nilesh Keshavji Kalaiya. It is pertinent to note that the deceased Mariumben was brought by her father to Irvin Hospital at about 10:30 a.m. When she was admitted in the hospital, the concerned Doctor has recorded the history given by the deceased herself wherein she has specifically stated that she was alright before about 9:00 a.m. She was suffering

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from pain in the abdomen off and on. She was taking treatment from the hospital. She was tired of pain in abdomen and therefore she committed suicide by pouring kerosene on herself and burnt herself. It is pertinent to note that the said history was given by the deceased herself in presence of her father before the independent witness like Doctor. This was the first version of the deceased before an independent witness. Thus, as per the first version given by the deceased herself, she poured kerosene herself and set her on fire and thereby committed suicide.

29. At this stage, the deposition given by PW 1 - Dr. Sudhirbhai Mehta - Exh.6 is also required to be kept in view. The said prosecution witness in para 5 of his examination-in-chief has specifically stated that patient was unconscious during the period between 12:00 to 2:00 p.m. During the cross- examination also the said witness has stated that patient was unconscious between 12:00 to 2:00 p.m. and she was not in a position to give any statement. She was not even in a position to speak, hear or understand anything during the said period. It is pertinent to note that the concerned Executive Magistrate has recorded the dying declaration between 1:05 p.m. to 1:20 p.m. and thereafter the FIR was registered between 1:30 p.m. to 2:15 p.m. Thus, from the deposition of PW-1 it is clear that when the patient was unconscious between 12:00 to 2:00 p.m., reasonable doubt is created about genuineness and

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correctness of the dying declaration recorded by the Executive Magistrate during the said period.

30. The learned Trial Court has discussed in para 20 of the impugned judgment and order with regard to the oral dying declaration given by the deceased before her father and rightly disbelieved the said oral dying declaration as there was strain relationship between the father of the deceased and the respondent

- accused.

31. At this stage, from the medical papers produced vide Exh.45, it reveals that the deceased was operated for some gynaec pathology related issues 12 days prior to the date of incident. The deceased was operated, inspite of that, there was pain in the abdomen of the deceased. Hence, the deceased has given the history before the Doctor when she was admitted in the hospital that because of pain in her abdomen, she has attempted to commit suicide.

32. Thus, there are two versions in different dying declarations given by the deceased in different form. As observed hereinabove, the first version was given before the Doctor in the form of medical history by the deceased herself, wherein, she has stated that she has committed suicide, whereas, the other versions are in the form of dying declaration recorded by the Executive Magistrate, dying declaration in the form of FIR given by the deceased

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herself before the police authority and the oral dying declaration given before her father.

33. This Court has gone through the impugned judgment and order passed by the concerned Trial Court and this Court is of the view that learned Trial Court has rightly not believed the dying declaration recorded by the Executive Magistrate and rightly created doubt on the said dying declaration in view of the fact that PW 1 - Dr. Sudhirbhai Mehta has stated that patient was unconscious between 12:00 p.m. to 2:00 p.m.

34. In the case of Veerpal and another (supra), the Hon'ble Supreme Court observed as under:

"11. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, it is required to be considered whether the dying declaration recorded by the Magistrate on 22.12.2011 is to be believed or not. Nothing is on record with regard to any allegation against the Magistrate/SDM to the effect that he was biased or interested in recording the dying declaration against the accused. He was summoned during the course of investigation and during the course of investigation he recorded the dying declaration and the statement of deceased. Even the High Court as such has not doubted the credibility of the dying declaration recorded by the Magistrate/SDM on the ground of malice. The reasoning given by the High Court to not rely upon the dying declaration recorded by the Magistrate/SDM is not germane

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and cannot be accepted.

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15. Even considering the medical evidence on record and the injuries sustained by the deceased, it is found that there were no injuries at all on the chest and injuries were found on the head and on the backside. As rightly observed by the Trial Court if she had committed suicide by pouring kerosene there would have been injuries on the chest as well as injuries would not have been on the head and on the backside. In our view, such injuries as found on the body of the deceased could have been possible only if somebody had poured kerosene on her from behind her. The aforesaid aspect has not at all been considered by the High Court.

16. Now, on the aspect, whether in absence of any corroborative evidence, there can be a conviction relying upon the dying declaration only is concerned, the decision of this Court in the case of Munnu Raja & Anr. (supra) and the subsequent decision in the case of Paniben (Smt) V. State of Gujarat, (1992) 2 SCC 474 are required to be referred to. In the aforesaid decisions, it is specifically observed and held that there is neither a rule of law nor of prudence to the effect that a dying declaration cannot be acted upon without a corroboration. It is observed and held that if the Court is satisfied that the dying declaration is true and voluntary it can base its conviction on it, without corroboration. Similar view has also been expressed in the cases of State of Uttar Pradesh V. Ram Sagar Yadav & Ors. (1985) 1 SCC 552 and Ramawati Devi V. State of Bihar, (1983) 1 SCC 211. Therefore, there can be a conviction solely based upon the dying declaration without corroboration.

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   xxx        xxx xxx

18. The relevant facts of Kushal Rao case are that the deceased therein had given three successive dying declarations within a span of two hours, which were, to a certain degree contradictory to each other. However, one of the aspects that remained common and was narrated by the deceased in all three dying declarations was that he was attacked by two persons, namely Kushal Rao and Tukaram with swords and spears. This Court, relying on the common thread running through all dying declarations, which was consistent with medical evidence revealing punctured and incised wounds on various parts of the body, held that the said declarations could be relied upon in convicting the accused who had been named in all three dying declarations."

34.1. In the case of Edmund S. Lyngdoh (supra), the Hon'ble Supreme Court observed as under:

"21. Where the accused gives evasive answers in his cross-examination under Section 313 Cr.P.C., an adverse inference can be drawn against him. But such inference cannot be a substitute for the evidence which the prosecution must adduce to bring home the offence of the accused. The statement under Section 313 Cr.P.C. is not an evidence. In Balwant vs. State of U.P. (2008) 9 SCC 974, this Court held that conviction of the accused cannot be based merely on his statement recorded under Section 313 Cr.P.C. which cannot be regarded as evidence. It is only the stand or version of the accused by way of explanation explaining the incriminating evidence/circumstances appearing against him. The statement made in defence by the accused under Section 313 Cr.P.C. can

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certainly be taken aid of to lend credence to other evidence led by the prosecution. Statements made under Section 313 Cr.P.C. must be considered not in isolation but in conjunction with the other prosecution evidence.

22. In the present case, it is not as if the High Court arrived at the conclusion and based conviction only on the statement made by the first accused under Section 313 Cr.P.C. As seen from the reasonings of the High Court extracted above, the statement of first accused under Section 313 Cr.P.C. was taken with the evidences of PW-6 and PW-13 and items 7(17) of Ext. P5 as a link to complete the chain of circumstances against A-1. As elaborated earlier, the answers given by the first accused were considered not in isolation but in conjunction with other oral and documentary evidence. We find no substance in the contention that the High Court erred in taking the statement of first accused under Section 313 Cr.P.C. as a link to complete the chain of circumstances."

34.2. In the case of Prithipal Singh and others (supra), the Hon'ble Supreme Court observed as under:

"49. This Court has consistently held that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed

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and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. (See: Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614; Sunil Kumar v. State Govt. of NCT of Delhi, (2003) 11 SCC 367; Namdeo v. State of Maharashtra, (2007) 14 SCC 150; and Bipin Kumar Mondal v. State of West Bengal, AIR 2010 SC 3638).

xxx xxx xxx

52. Therefore, in a murder case, it is not necessary that the dead body of the victim should be found and identified, i.e. conviction for offence of murder does not necessarily depend upon corpus delicti being found. The corpus delicti in a murder case has two components - death as result, and criminal agency of another as the means. Where there is a direct proof of one, the other may be established by circumstantial evidence."

34.3. In the case of Laxman (supra), the Hon'ble Supreme Court observed as under:

"5. The court also in the aforesaid case relied upon the decision of this court in Harjeet Kaur VS. State of Punjab 1999(6) SCC 545 case wherein the magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration

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but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this court in Paparambaka Rosamma & Ors. vs. State of Andhra Pradesh 1999 (7) SCC 695 to the effect that "in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a magistrate who opined that the injured was in a fit state of mind at the time of making a declaration" has been too broadly stated and is not the correct enunciation of law. It is indeed a hyper- technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind where-after he recorded the dying declaration. Therefore, the judgment of this court in Paparambaka Rosamma & Ors. vs. State of Andhra Pradesh 1999 (7) SCC 695 must be held to be not correctly decided and we affirm the law laid down by this court in Koli Chunilal Savji & Another vs. State of Gujarat 1999(9) SCC 562 case."

35. This Court cannot dispute the proposition of law laid down by the Hon'ble Supreme Court in the aforesaid decisions. However, this Court is of the view that the aforesaid decisions would not be applicable to the facts of the present case.

36. It is pertinent to note that in the decision

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rendered in the case of Veerpal and another (supra), the Hon'ble Supreme Court has specifically observed that if the Court is satisfied that the dying declaration is true and voluntary it can base its conviction on it, without corroboration. However, in the present case, the learned Trial Court was not satisfied that the dying declaration given by the deceased is true and voluntary in view of the deposition given by PW 1 - Dr. Sudhirbhai Mehta and the medical history given by the deceased herself before the doctor.

36.1. The Hon'ble Supreme Court, in the aforesaid decision, has also observed that if a dying declaration is recorded by the competent Magistrate in the proper manner i.e. in the form of questions and answers then the said dying declaration is to be believed. However, in the present case, the dying declaration is not recorded in question and answer form and therefore the aforesaid decision would not render any assistance to learned APP.

37. In the case of Chandrappa (supra), the Hon'ble Supreme Court observed as under:

"17. It cannot, however, be forgotten that in case of acquittal, there is a 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 should be presumed to be innocent unless he is proved to

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be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial Court.

 xxx        xxx xxx

 39.   From  the    above  decisions,  in   our
 considered   view,    the   following  general

principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;

(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;

(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental

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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.

40. Applying the above principles to the case on hand, we are of the considered view that the learned counsel for the accused is right in submitting that the High Court ought not to have disturbed an order of acquittal recorded by the trial Court. For acquitting the accused and extending them the benefit of doubt, the trial Court observed that the prosecution had failed to examine certain persons who could have unfolded the genesis of the prosecution case. The trial Court indicated that the root cause of the quarrel was refusal to exchange copper vessel (Kolaga) to Nagraj, winner of the draw, but he was not examined. Likewise, Krishnaiah, son of Oblaiah, who accompanied injured (deceased) Anjaniappa to the hospital, was not brought before the Court. Though it is in evidence that Accused No. 1 Chandrappa was injured and was also taken to the hospital alongwith Anjaninappa, some witnesses had denied the fact as to injuries sustained by the Accused No.1. The High Court did not give much weight to the said circumstance observing that Accused No. 1 was neither examined by a doctor nor a cross-complaint was filed by him against the prosecuting party. In our view, the submission of the learned counsel for the appellants is well founded that it is not material whether Accused No. 1 had or had not filed a complaint or he was or was not examined by a doctor, but the fact that even

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though it was the case of prosecution that Accused No. 1 was injured during the course of incident, prosecution witnesses tried to suppress that fact which would throw doubt as to the correctness of the case or the manner in which the incident had happened. The trial Court had also stated that it was unnatural that the prosecution witnesses and deceased Anjaninappa could have gone to Hanumanthapura Bypass at about 9.30 p.m. when a shorter route was available for going to their destination. The trial Court observed that there was inconsistency in prosecution evidence as to availability of electric light at the time of incident. The Court also noted that the knife produced before the Court as mudamal article was not the same which was used by Accused No. 8 for inflicting injury on the deceased. There was also no consistency in evidence as to injuries sustained by prosecution witnesses.

41. In our view, if in the light of above circumstances, the trial Court felt that the accused could get 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, reappreciate 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 present case, the view taken by the trial court for acquitting the accused was possible and plausible. On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is 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 trial Court, it ought not to be disturbed by the appellate Court. In this case, a possible view on the evidence of prosecution had been taken by the trial Court

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which ought not to have been disturbed by the appellate Court. The decision of the appellate Court (High Court), therefore, is liable to be set aside."

38. 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.

39. 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

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not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.

40. 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 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.

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41. Considering the aforesaid facts and circumstances of the present case and the law laid down by the Hon'ble Supreme Court in the aforesaid decisions upon which reliance is placed by 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 Court. Accordingly, present appeal deserves to be dismissed and is, accordingly, dismissed.

(VIPUL M. PANCHOLI, J)

(HEMANT M. PRACHCHHAK,J) LAVKUMAR J JANI