State Of Gujarat vs Jagdishbhai Keshabhai Makvana
2023 Latest Caselaw 2068 Guj

    R/CR.A/1150/2011                                CAV JUDGMENT DATED: 06/03/2023




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 1150 of 2011


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN                                Sd/-
==========================================================

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 YES of the judgment ?

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

========================================================== STATE OF GUJARAT Versus JAGDISHBHAI KESHABHAI MAKVANA & 5 other(s) ========================================================== Appearance:

MS RIYA PATEL FOR MR TEJAS M BAROT(2964) for the Opponent(s)/Respondent(s) No. 1,2,3,4,5,6 RULE SERVED for the Opponent(s)/Respondent(s) No. 2,3,4,5,6 ==========================================================

CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 06/03/2023

CAV JUDGMENT

1. Present appeal has been filed by the appellant - State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 20.06.2011,

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passed in Sessions Case No. 38 of 2010 by the learned 2 nd Additional Sessions Judge, Mahesana, camp at Visnagar, recording the acquittal.

2. Brief facts are that complainant - Devjibhai Hirabhai has filed the complaint against the respondents - accused to the effect that the deceased Sushila was his third daughter. Sushila was married to accused no.1 before 12 years of incident and out of such wedlock deceased has two children. On the day of incident i.e. 13.03.2009 at about 7:00 am complainant received a phone call from the elder brother in law of the deceased that deceased has received burn injuries and they shall came immediately. As he was not well that day, both of his sons with his wife went to matrimonial home of the deceased. After some time, he received phone call of his son Kaushik that deceased got burnt and died and her dead body was to bring at Visnagar Civil Hospital for post-morterm. Therefore, complainant reached the Civil Hospital at about 10:00 am, where his son Kaushik has informed him that deceased was pressurized to commit suicide by her in-laws. It is also stated in the complaint that before few days of the incident, complainant and his son Kaushik received a message that in - laws of the deceased have beaten her and harassed her. At that time, brother of the deceased - Kaushik with his wife visited the deceased and persuaded the in - laws of the

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deceased not to beat her or harass her. It is also stated in the complaint that on 26.02.2003 deceased had filed a complaint against her husband and in - laws becasue of ill-treatment and harassment by them. However, compromise was arrived at between the parties in the Court and thereafter elder brother in law of the deceased had come and brought back her to matrimonial house. However, such mental and physical torture didn't stop and therefore, deceased ended her life by setting herself on fire.

3. Hence, the complainant lodged a complaint against the respondents - accused for the offences punishable under Sections 306, 498(A) and 114 of the Indian Penal Code, 1860 (herein after referred to as 'the IPC') and Sections 3 and 7 of the Dowry Prohibition Act.

4. Upon filing of such complaint, the investigation was set in motion and the investigating officer recorded statements of witnesses, panchnama of the scene of offence and other panchnamas were prepared, got pospostmortem of the deceased done, muddamal was sent to the FSL, and as there was sufficient evidence against the accused, chargesheet was filed in the court of learned Judicial Magistrate First Class. As the case was triable by the Sessions Court, the learned Magistrate

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having no jurisdiction to try the case, the case was committed to the Sessions Court.

5. The learned Sessions Judge before whom the case was committed, framed the Charge. The accused denied the contents of the charge. As a result, trial was conducted by the Sessions Judge. Further Statements of the respondents - accused under section 313 of the Code of Criminal Procedure were recorded in which accused - respondents denied the charges and prayed for trial. Upon recording of the Further Statements of the accused, arguments were heard by the learned Sessions Judge and thereafter trial was resulted into acquittal of all the accused from the charges levelled against them. As a result of which the present appeal is filed by the appellant - State of Gujarat.

6. Heard learned APP Ms. C. M. Shah for the appellant - State and lerned advocate Mr. Tejas M. Barot appearing for the respondents - accused.

7. The learned APP for the appellant - State has mainly contended that the learned trial Judge has erred in holding that the prosecution has failed to prove its case beyond reasonable doubt. She submitted that the impugned judgment of the trial Court is based on presumptions and inferences and

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thereby, it is against the facts and the evidence on record. The learned APP further submitted that the learned trial Judge has failed to appreciate the evidence on record in its true and proper perspective and thereby, has erred in recording the acquittal of the respondents - accused.

7.1 The Learned APP has submitted that the judgement and order passed by the learned Sessions Judge is against the evidence on record and provision of law. The learned Sessions Judge has not appreciated and accepted the evidence of prosecution witness Kaushikkumar Devjibhai Solanki, who has been examined at Exh.19. He is the brother of the deceased. He has fully supported the case of prosecution and narrated the whole incident about mental and phycial torture of the deceased by the accused - respondents. The learned Sessions Judge has also not appreciated the evidence of the investigating officer in its true and correct perspective. It is further submitted that Sessions Judge has committed a grave error in not believing the deposition of the witnesses examined by the prosecution. It is further submitted that the Sessions Judge has erred in acquitting the respondents - accused from the charges levelled against them. It is further submitted that the prosecution has proved that the respondents have committed the offence under sections 306, 498(A) and 114 of IPC and sections 3 and 7 of Dowry Prohibition Act. It is

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further submitted that the learned Sessions Judge has acquitted the respondents - accused merely on some minor contradictions and omissions in the evidence of the witnesses. She has further argued that the learned Sessions Judge has erred in not believing the evidence of the investigating officer who had no reason to implicate the accused falsely in the case. It is further submitted that the offence punishable under sections 306, 498(A) and 114 of IPC and sections 3 and 7 of Dowry Prohibition Act, is made out against the respondents - accused, however, the same is not believed by the learned Sessions Judge. It is further submitted that though the prosecution witnesses have supported the case of the prosecution, the learned Sessions Judge has not believed their evidence and acquitted the respondents - accused erroneously. She has requested to allow the present appeal.

8. On behalf of the respondents, learned advocate Mr. Tejas Barot has submitted that there is hardly any substance in the submissions of learned APP. There is no evidence on record connecting the respondents accused with the commission of the offence. There are material contradictions and omissions in the evidence of the prosecution witnesses. The trial court has rightly appreciated the evidence on record and held that the prosecution has failed to prove the case against the respondents - accused beyond reasonable doubt and rightly

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acquitted the accused. He has requested to dismiss the present appeal.

9. Heard learned advocates for the respective parties and perused the impugned judgment and order of acquittal and re- appreciated the entire evidence on record.

10. Before adverting to the facts of the case, it would be worthwhile to refer to the scope in acquittal appeals. It is well settled by catena of decisions that an appellate Court has full power to review, re-appreciate and consider the evidence upon which the order of acquittal is founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice in favour of the accused, firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court.

10.1 Further, if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the

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order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrive at would not be arrived at by any reasonable person, and therefore, the decision is to be characterized as perverse.

10.2 Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence, if it is of the view that the conclusion arrived at by the Court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. That the duty is cast upon the the appellate Court, in such circumstances, to re- appreciate the evidence to arrive to just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged.

10.3 In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, (2019) 2 SCC 752, the Apex Court has observed that,

"The presumption of innocence which is attached to

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every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court".

10.4 Yet in another decision in Chaman Lal v. The State of Himachal Pradesh, rendered in Criminal Appeal No. 1229 of 2017 on 03.12.2020, 2020 SCC OnLine SC 988 the Apex Court has observed as under:

"9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:

12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a

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finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445)

13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p.

404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

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14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755)

15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42)

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

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

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

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(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."

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18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;

(ii) The High Court's conclusions are contrary to evidence and documents on record;

(iii)The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

(v) This Court must always give proper weight and consideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal." A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC

19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate

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court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."

11. In the aforesaid background the evidence produced on record by the prosecution if re-appreciated, the prosecution has examined total 14 witnesses, amongst which mainly relied upon the deposition of following witnesses; (1) PW 1 - Jigneshkumar Rameshchandra Modi, Medical Officer at Exh.14 (2) PW 2 - Kaushikbhai Devajibhai Solanki at Exh.19 (3) PW 3 - manishaben Kaushikbhai Solanki at Exh.31 (4) PW 4 - Jitendrakumar Devjibhai Solanki at Exh. 32 (5) PW 14 - Natwarbhai Kalubhai Vagheal, PSI at Exh.51 11.1 In this case PW 1 to PW 6, all the witness have stated that the deceased has committed suicide by self immolation. In support of the case of prosecution, Medical Officer is also examined and he has stated on oath that he has conducted post morterm on the body of the deceased. The cause of death of deceased was intensive burn injuries. Considering the evidence on record and considering the evidence of all the witnesses and the Medical Officer particularly it is not the case of homicidal death but it is the case of suicide death, which comes under Section 306 of the IPC. As the deceased has

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committed the suicide due to harassment by the respondents accused and mental and physical torture given by the accused to the deceased which has instigated the deceased to commit the act of suicide. Whether the case under Section 306 of the IPC abatement of suicide and 498A of the IPC to the victim has been proved, is to be seen through the re-appreciation of the evidence on record. Complainant died during pendency of the Sessions Case and therefore, the complainant cannot be examined by the trial Court.

11.2 PW 1 the Medical Officer, who has performed post morterm on the body of the deceased was examined at Exh.14. He has described procedural part in his evidence. He has also stated that if a person tried to do suicide by burning, the injuries found on the body of the deceased are possible. He has stated the reason for death is extensive burns, because there is 85 - 90% burn injuries on the body of the deceased.

11.3 PW 2 is the brother of the deceased, who is examined at Exh.19. He has stated in his deposition that before three days of the incident, he has received a message that respondents - accused have beaten the deceased. Therefore, he and his wife went to the house of the respondents and make them understand not to harass the deceased. He has also stated that on night before the incident, he has received a phone call

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from the deceased that respondents are harassing her and at that time she has requested the witness to bring her to her parental house. He has also stated that at that time he has told her that he will come next morning because he didn't take it that much seriously and in the next morning at 7;00 am he received message that deceased has burnt herself. He has also admitted in his deposition that deceased was brought to her matrimonial home for after death rituals. So if there is any problem at her matrimonial home, generally no one will bring the dead body there for after death rituals.

11.4 PW 3 is sister in law of the deceased and wife of PW 2, Ex..31 Though she has stated in her deposition that deceased was harassed and beaten by the respondent - accused in her cross - examination she has stated a completely different story by saying that there is no problem to the deceased at her matrimonial house and that deceased has never complained about anything. On the contrary she has admitted that since deceased was not keeping well since last 5 -6 years and therefore, she has committed suicide because of her illness. This witness is declared hostile.

11.5 PW 4 is younger brother of the deceased, who is examined at Exh.32. In his deposition, this witness has mostly repeated the facts as per his brother PW 2. However, on

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reading his deposition, it transpires that he did not have personal knowledge about many things and his statement is only hearsay. Therefore, this witness cannot be relied upon.

11.6 Some of the witnesses have stated that they did not go anywhere and police has taken their signatures on some papers. PW 5, PW 9 and PW 10 have declared hostile and do not support the case of prosecution.

11.7 PW 14 is the Investigating Officer of the case, who was examined at Exh.51. He has stated procedural aspect in his deposition. In cross examination he has admitted that when he has taken the statement of Sarapanch of Lachhadi village, where deceased was residing, the Sarpanch has told him that deceased was of aggressive and adamant nature and that allegations are base-less. He has also stated that complainant has himself registered a complaint and complainant was able to speak and hear.

11.8 Considering all these statements of the witnesses and when real sister in law of the deceased has declared hostile, allegations that for want of dowry, deceased was mentally and physically tortured, are not believable. Moreover conjoint reading of the depositions of the above said witnesses clearly shows that these main witnesses, who are nearest family

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members of the deceased and upon whom the prosecution has relied upon, not fully supporting the case of prosecution. As per the evidence of PW 2 brother of the deceased, in -laws of the deceased were not living with the deceased at the time of incident and therefore there is no question of harassment of torture attributed by them. The glaring aspect which is to be seen that mother of the deceased was not examined by the prosecution. Moreover, though there is a complaint filed under the provisions of Dowry Prohibition Act, there is not allegation of dowry in the the evidence of any of the witnesses.

12. At this stage, it is beneficial to refer the decision of the Honourable Supreme Court in case of Arnab Manoranjan Goswami versus State of Mahrashtra and others reported in (2021) 2 SCC 427, wherein in para 50 it is observed that;

"50. The first segment of Section 107 defines abetment as the instigation of a person to do a particular thing. The second segment defines it with reference to engaging in a conspiracy with one or more other persons for the doing of a thing, and an act or illegal omission in pursuance of the conspiracy.

Under the third segment, abetment is founded on intentionally aiding the doing of a thing either by an act or omission. These provisions have been construed specifically in the context of Section 306 to which a reference is necessary in order to furnish the legal foundation for assessing the contents of the FIR. These provisions have been construed in the earlier judgments of this Court in State of West Bengal vs Orilal Jaiswal, Randhir Singh vs State of Punjab,

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Kishori Lal vs State of MP (―Kishori Lal) and Kishangiri Mangalgiri Goswami vs State of Gujarat. In Amalendu Pal vs State of West Bengal, Justice Mukundakam Sharma, speaking for a two judge Bench of this Court and having adverted to the earlier decisions, observed :

"12...It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable."

13. Considering these provisions of law in light of the evidence which is brought on record here aspect of cruelty by the respondents - accused to the deceased to the extent of her commission of suicide which can be termed to be abatement, is not proved as per the evidence of the witnesses.

13.1 As stated above, instigation or abatement of suicide which are essential ingredients of Section 306 of the IPC is not proved. Thus on re-appreciation of evidence as well as considering the settled legal position, prosecution has failed to prove the case.

13.2 Thus, considering the above, it appears that there are

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contradictions in the deposition of the complainant herself. Further, there is nothing on record, except bare words that respondents / accused have instigated the deceased to take such and extreme step. At his juncture, if the decision of the Apex Court in case of M. Arjunan vs. State, reported in AIRONLINE 2018 SC 846 is referred to, the Court has held as under;

"The essential ingredients of the offence under Section 306 IPC are (i) abetment, (ii) the intention of the Accused to aid or instigate or abet the deceased to Commit suicide. The act of the Accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be Evidence capable of suggesting that the Accused intended by such act to instigate the deceased to Commit Suicide. Unless the ingredients/abetment to Commit Suicide are satisfied. Accused cannot be convicted under Section 306 IPC."

14. In the present case also, as discussed herein above, there is nothing on record to show or suggest that the accused had instigated the deceased to commit suicide and there are contradictions in the depositions of main witnesses, who are nearest family members of the deceased.

15. Considering the entire evidence on record oral as well as documentary, this Court is of the opinion that the prosecution has failed to prove the case against the accused by leading cogent and convincing evidence. The judgment delivered by

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the Sessions Judge is sound on the aspect of law and facts. The evidence brought on record by the prosecution before the trial court has been rightly appreciated by the trial court. No apparent error on the face of the record is found from the judgment. The judgment does not suffer any material defect or cannot be said to be contrary to the evidence recorded.

16. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:-

"6. This Court has held in Kalyan v. State of U.P., (2001) 9 SCC 632 :

"8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must

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be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808, this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed:

"27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always

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there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of "The Proof of Guilt" by Glanville Williams, second edition:

"I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos."

28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793, as is clear from the following observations:

"Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations."

"9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the noninterference with the order of acquittal where it is indeed only a case

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of taking a view different from the one taken by the High Court."

8. In Arulvelu and another versus State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under:

"36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law."

17. 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

R/CR.A/1150/2011 CAV JUDGMENT DATED: 06/03/2023

if it had been the trial Court, it might have taken a different view.

18. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.

19. In view of the above and for the reasons stated above, the judgment and order dated 20.06.2011, passed in Sessions Case No. 38 of 2010 by the learned 2 nd Additional Sessions Judge, Mahesana, camp at Visnagar is hereby confirmed. The present Criminal Appeal deserve to be dismissed and is accordingly dismissed. Bail bond, if any, stands cancelled. R & P be sent back to the concerned trial Court, forthwith.

Sd/-

(RAJENDRA M. SAREEN,J) R.H. PARMAR