The State Of Gujarat vs Shailesh Kalidas Mehta
2023 Latest Caselaw 2484 Guj

     R/CR.A/283/2008                                JUDGMENT DATED: 24/03/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 283 of 2008


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI

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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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                             THE STATE OF GUJARAT
                                     Versus
                       SHAILESH KALIDAS MEHTA & 2 other(s)
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Appearance:
MS JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR for the Appellant
ABATED for the Respondent(s) No. 2
MR TARAK DAMANI(6089) for the Respondent No. 1,3
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    CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                Date : 24/03/2023

                                ORAL JUDGMENT

1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 30.3.2007 passed by the learned 2nd Additional Sessions Judge, Bhavnagar in Sessions Case No.224 of 2006, whereby the respondents accused came to be acquitted

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for the offences under sections 498(A), 306, 323, 114 of Indian Penal Code, the appellant - State has preferred present appeal under section 378 of the Code of Criminal Procedure, 1973 ("the Code" for short).

2. Brief facts of the case leading to filing of the appeal are that as per the complaint, the complainant is belonging to Vaniya community and she is residing at village Budhel along with her husband and mother-in-law. That on 8.7.2006, while she was at her in-law's house, her husband has beaten her and sent her back to her parental home. That day before the incident, the complainant was given kick and fist blows by her husband and was subjected to cruelty by her mother-in-law. Rekhaben - sister-in-law of the also abetted husband and mother-in-law of the complainant for ill-treating the deceased. Thus, all the accused persons in abetment of each other, have caused physical and mental torture to the complainant deceased and therefore, the complainant committed suicide by pouring kerosene on her body and setting her on fire. Thus, FIR being C.R.No.II - 71 of 2006 at the instance of the deceased came to be registered against the respondents accused for the aforesaid offences.

3. In pursuance of the complaint being C.R.No.II - 71 of 2006 lodged by the complainant with the Vartej Police Station for the aforesaid offences, the investigating agency recorded statements of the witnesses, drawn various Panchnamas and obtained FSL report for the purpose of proving the offence. After having found sufficient material against the respondents accused, charge-

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sheet came to be filed in the Court of learned JMFC, Bhavnagar. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Bhavnagar as provided under section 209 of the Code.

4. Upon committal of the case to the Sessions Court, Bhavnagar, learned Sessions Judge framed charge at Exh.2 against the respondents accused for the aforesaid offences. The respondents accused pleaded not guilty and claimed to be tried.

5. In order to bring home charge, the prosecution has examined as many as 8 witnesses and also produced 18 documentary evidence before the learned trial Court, more particularly described in para 3 of the impugned judgment and order.

6. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondents accused so as to obtain explanation/answer as provided u/s 313 of the Code. In the further statement, the respondents accused denied all incriminating circumstances appearing against them as false and further stated that they are innocent and false case has been filed against them. Also pleaded that the deceased was suffering from the headache and pain in stomach and was fed up of the same, set herself to fire. Insofar as accused Rekhaben and Savitaben are concerned, they claimed their absence on the day incident took place.

7. We have heard learned APP for the appellant - State and

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minutely examined oral and documentary evidence adduced before the learned Trial Court.

8. Learned APP Ms. Jhaveri having taken this Court through the deposition of the witness recorded before the learned trial Court would submit that the learned trial Court erred in not appreciating the evidence of the prosecution witnesses. She further submits that the learned trial Court ought to have believed the deposition of PW 5 Dr. Jahangir Ratnani, Exh.22 as well as deposition of PW 7 Dr. Abdul Rahim Khokhar, Exh.30, Executive Magistrate, who recroded the dying declaration of the deceased at Exh.32. She further submits that even the FIR in the present case has been give by the deceased herself produced at Exh.20, indicates another dying declaration related to the cause of death and therefore, in the facts and circumstances that two dying declarations given by the deceased Alpa squarely proved in the deposition of the Executive Magistrate as well as police personnel, who has recorded the FIR, goes without saying that the deceased was subjected to physical and mental torture being meted out at the hands of the accused. Yet, the learned trial Court has overlooked this empathetic evidence on record and erred in acquitting the accused.

8.1 Learned APP Ms. Jhaveri would further submit that though the scope of the acquittal appeal is limited, considering these peculiar facts and circumstances and more particularly, dying declaration given by the deceased for her cause of death, were the sufficient evidence on record to convict the accused u/s 498(A) and 306 of the IPC, but the learned trial Court erred in not believing such evidence. She would further submit that

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though there is technical but minor differences in the evidence produced by the prosecution, yet if they read collectively, would suffice to convict the accused. On such submission, learned APP would submit to allow this appeal and to quash and set aside the impugned judgment of acquittal and to convict the accused.

9. Per contra, learned advocate Mr. Tarak Damani appearing for the respondents accused would submit that two statements of the deceased, which are considered as dying declarations by the prosecution, are recorded 15 minutes apart and both of them have stated different story of cause of death of the deceased and that has snake their credibility. He would further submit that the thump impression of the deceased said to have been in the dying declaration at Exh.32 is not identified by any person and looking to this aspect, the dying declaration on the record is highly suspicious and cannot be considered for convicting the accused. He would further submit that in Exh.25 - medical case papers, the history given by the deceased has been noted by the doctor, who has initially treated the deceased. In this history, which is first in point of time given from the tongue of the deceased, she did not speak anything about the harassment and cruelty. The doctor, who has recorded the history in the medical papers produced at Exh.25, has not been examined by the prosecution nor Dr. Goswami, who has treated the deceased. In these given facts and circumstances, since the dying declaration and the FIR, which is treated as dying declaration by the prosecution, reading it on its face, expresses empathatical facts. Thus, both the dying declaration, rightly has been discarded by the learned trial Court.

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9.1 Learned advocate Mr. Damani having taken this Court to para 19 of the impugned judgment, would submit that the learned trial Court has discussed evidentiary value of the dying declaration as well as the FIR vividly and in that given circumstances, for as much considering the scope of the acquittal appeal, no interference is required to be called for in the impugned judgment of acquittal and therefore, the present appeal may be dismissed.

10. As noticed from the factual discussion made by the learned trial Court in the impugned judgment, the deceased having set herself to the fire, was subsequently moved to the hospital, where within span of 15 minutes apart, two different statements, namely, FIR and the dying declaration have been recorded. The FIR Exh.20 was recorded by the PSI GN Jalvaniya, who has been examined as PW 4 at Exh.17 and the dying declaration at Exh.32 was recorded by the Executive Magistrate PW 7 Abdul Rahim Pokhar. Perusing the FIR at Exh.20, it transpires that vague and general allegations as to the physical and mental torture are made. Qua the incident, the deceased said that two days prior to the incident, her husband has given blow by kicking on the stomach and he has also slapped her, whereas, her mother-in-law Savitaben has taunted her and given the physical torture. She has further stated that during the marriage span, her husband and her mother-in-law were giving physical and mental torture and therefore, she set herself to ablaze. While recording this FIR in the hospital, around 5:15 in the evening, PSI Mr. Jalvaniya has not obtained any certificate from the treating doctor that whether the deceased was in a fit state of

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mind to give statement. Insofar as dying declaration produced at Exh.32 is concerned, recording of it has been started at 5 o'clock on the very same day i.e. on 8.7.2006. This dying declaration has been recorded by the Executive Magistrate after obtaining certificate from Dr. Ratnani that the deceased is in fit state of mind to give the statement. In this dying declaration, she stated that since last 13-14 years, there is a quarrel between her and her husband as well as with her mother-in-law. Whenever, she is talking about the harassment given by her mother-in-law to her husband, her husband was beating the deceased. Therefore, she was fed up of the physical and mental torture. She has also submitted that her sister-in-law Rekhaben was also making ruckus time and again with her and because of such, she fed up and she set herself to fire.

10.1 The important aspect is that the thump impression below such the dying declaration has been though identified by someone, it is not visible or readable that who has identified such thump impression. It is also the case of the prosecution that the deceased has made thump impression of right hand. However, no such ink mark of right hand of the deceased is found in the pm report.

Section 32 of the Evidence Act, which is material facts of this appeal, reads as under:-

"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. --

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the

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Court unreasonable, are themselves relevant facts in the following cases: --

(1) When it relates to cause of death. --When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

(2) Or is made in course of business.--When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him.

(3) Or against interest of maker.--When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.

(4) Or gives opinion as to public right or custom, or matters of general interest.--When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.

(5) Or relates to existence of relationship.--When the statement relates to the existence of any relationship [by blood, marriage or adoption] between persons as to whose relationship [by blood, marriage or adoption] the person making the statement had special means of knowledge, and

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when the statement was made before the question in dispute was raised.

(6) Or is made in will or deed relating to family affairs. -- When the statement relates to the existence of any relationship [by blood, marriage or adoption] between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.

(7) Or in document relating to transaction mentioned in Section 13, clause

(a).--When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, clause (a). (8) Or is made by several persons and expresses feelings relevant to matter in question.--When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question."

10.2 There is no doubt that if the dying declaration is proved to be the last statement of the deceased, that can be the sole base for the conviction of the accused provided that the credibility is attached with such statement. However, weight and utility of a dying declaration depend upon the surrounding circumstances and the credibility which the court attaches to it, having regard to the evidence led before it. Therefore, whether it is essential to have medical certification before the statement is recorded, who records it, etc. are all fact dependent, and no stereotypical approach can be adopted by courts. A dying declaration either can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. Dying

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declaration may be more than one. In case of more than one dying declaration, if inconsistent facts are coming, Court needs to scrutinize other surrounding evidence also.

10.3 In Lakhan vs. State of M.P. reported in 2010(9) SCR 705 the Apex Court considered and indicated the approach, which may be adopted, where the evidence includes multiple dying declarations, that may contain inconsistent facts. Para 15 of the said judgment reads as under:-

"In view of the above, the law on the issue of dying declaration can be summarised to the effect that in case the court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. In case there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the court has to scrutinise the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance."

10.4 In Jagbir Singh v State of NCT Delhi reported in (2019) 8 SCC 779, the Hon'ble Apex Court reviewed several previous decisions involving multiple dying declarations and re-stated the law in following terms.:-

"a. Conviction of a person can be made solely on the basis of a dying declaration which inspires confidence of the court;

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b. If there is nothing suspicious about the declaration, no corroboration may be necessary;

c. No doubt, the court must be satisfied that there is no tutoring or prompting;

d. The court must also analyse and come to the conclusion that imagination of the deceased was not at play in making the declaration. In this regard, the court must look to the entirety of the language of the dying declaration;

e. Considering material before it, both in the form of oral and documentary evidence, the court must be satisfied that the version is compatible with the reality and the truth as can be gleaned from the facts established;

f. However, there may be cases where there are more than one dying declaration. If there are more than one dying declaration, the dying declarations may entirely agree with one another. There may be dying declarations where inconsistencies between the declarations emerge. The extent of the inconsistencies would then have to be considered by the court. The inconsistencies may turn out to be reconciliable.

g. In such cases, where the inconsistencies go to some matter of detail or description but is incriminatory in nature as far as the Accused is concerned, the court would look to the material on record to conclude as to which dying declaration is to be relied on unless it be shown that they are unreliable;

h. The third category of cases is that where there are more than one dying declaration and inconsistencies between the declarations are absolute and the dying declarations are irreconcilable being repugnant to one another. In a dying declaration, the Accused may not be blamed at all and the cause of death may be placed at the doorstep of an unfortunate accident. This may be followed up by another dying declaration which is diametrically opposed to the first dying declaration. In fact, in that scenario, it may not be a question of an inconsistent dying declaration but a dying declaration which is completely opposed to the dying declaration which is given earlier. There may be more than two."

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i. In the third scenario, what is the duty of the court? Should the court, without looking into anything else, conclude that in view of complete inconsistency, the second or the third dying declaration which is relied on by the prosecution is demolished by the earlier dying declaration or dying declarations or is it the duty of the court to carefully attend to not only the dying declarations but examine the rest of the materials in the form of evidence placed before the court and still conclude that the incriminatory dying declaration is capable of being relied upon-"

In light of the above principles, it is necessary to consider the evidentiary value of the dying declaration, which was relied on by the prosecution to convict the appellant.

10.5 Before appreciating the evidence of the Executive Magistrate as well as PSI, who has recorded the FIR, it is incumbent to indicate that the marriage span between the respondent accused and the deceased was of 14 years, so the question of presumption u/s 113(A) of the Evidence Act is ruled out.

10.6 Moreover, the mother of the deceased i.e. PW 2 Prafullaben has turned hostile. She did not utter a single word about the alleged cruelty to her daughter. She has also admitted that the accused was bearing all the expenses for the treatment of the deceased. She has also admitted that many a times, the deceased was saying that she was fed up of the pain in head and stomach. She has also admitted that there is no quarrel ever took place between the accused Shailesh and deceased Alpa. She has also admitted that two years back, the deceased has consumed excessive medicines and tried to commit suicide.

10.7 The neighbour of the deceased i.e. PW 1 speaks that the deceased was suffering from headache and continuing pain in

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the stomach and she was under the treatment of the doctor since long. He has also deposed that two years prior to the incident, the deceased has consumed excessive medicines of pain relief and therefore, she was hospitalized. He has also deposed that the deceased was fed up of this pain in the head as well as in the stomach. He has also deposed that no quarrel ever took place between the accused Shailesh and deceased Alpa. He has also deposed that he lives 100 mtr from the home of the deceased. He has also deposed that accused Savitaben was not living with the deceased.

10.8 In chief examination, the PW 4 PSI Mr. Jalvaniya said that the deceased could not begotten or not conceiving male child and therefore, she was fed up and because of that reason, in-laws were taunting her and on that ground, she set herself ablaze. In cross-examination, he has admitted that the deceased was treated by Dr. Goswami, but he never met Dr. Goswami. He started recording of FIR at 5:15 p.m. and completed at 5:30 p.m. He has also admitted that he has not taken any certificate from the doctor treating the deceased. He has also admitted that except the eyes, the entire part of the face was burnt.

10.9 According to the deposition of PW 5 Dr. Ratnani, he was present on the spot along with the Executive Magistrate between 5:00 p.m. and 5:20 p.m. It is important to note that during this time period, the PSI Mr Jalvaniya PW 4 was also there in the burns ward as per the case of the prosecution to register the FIR, but none of them have deposed about presence of each other. In cross-examination, he has admitted that Dr. Nimita has recorded the history given by the deceased and in the history,

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which is recorded in medical papers and produced at Exh.25, the deceased has stated that she could not bear up the mental stress because of ailment she was suffering and therefore, she has tried to commit suicide. He has further admitted that as per the history recorded in the medical papers, three years prior to the incident, the deceased has attempted to commit suicide by consuming sleeping pills. He has also admitted that the deceased has burnt upto 50% to 60%.

10.10 According to the deposition of Dr. Brijesh Sisodiya PW 6, the deceased was burnt upto 70% to 75%. He has also admitted that the injury was started from the face to the thigh.

10.11 According to the deposition of PW 7 - Executive Magistrate Abdul Rahim Khokhar, he has started recording the dying declaration at 5 o'clock. It is important to note that the FIR as per the case of the prosecution had been recorded during the very same period, but none of them, spoke the presence of each other. He has also admitted that the deceased has not stated that at particular point of time, her mother-in-law and her husband were giving physical and mental torture.

11. On overall appreciation of the evidence, it appears that there is inconsistency in the two statements said to have been given by the deceased. The cause of death stated in both the statements i.e. dying declaration and the FIR are different. Recording of both the statements i.e. dying declaration and the FIR are also found suspicious inter alia on the ground that though as per the prosecution case, both of them have been recorded 15 minutes apart, neither of them recorded presence of PSI or the doctor or the Executive Magistrate. Moreover, there is

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impression to the dying declaration is though identified, prosecution could not clarify who had identified the same. According to dying declaration, thump impression of right hand is taken, but pm note has not mentioned presence of ink mark on the thumb of right hand. This inconsistency goes to the root of the matter and it stifles the very evidentiary value of both the dying declarations. Apart from the dying declaration on record, there is no other evidence which indicates even physical or mental torture being meted out to the deceased. Even if the dying declaration and the FIR both are considerably proved as authentic documents, none of them shows the exact cause of action for committing suicide. None of them speaks for abetment to commit suicide. In order to prove the charge u/s 306 of the IPC, it is incumbent upon the prosecution to prove abetment as stated in section 107 of the IPC. There must be some overt act of the accused or absence of the overt act of the accused, which prompted the deceased to commit suicide and she had no other option except to commit suicide. What perceives from the dying declaration as well as from the FIR is the general wear and tear of the life and nothing more than that. There is no single incident stated in either of the statements, which indicates that there was some overt act, which has prompted and instigated the deceased to commit suicide.

12. In Indrasingh M. Raol v/s. State of Gujarat - 1999(3) GLR 2536, this Court has defined and explained the expression - cruelty and harassment in context to Sec.498A & 306 of the IPC. Relevant paragraph is para-6 & 7 which read as under :

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"6. The expression "cruelty" means and implies harsh & harmful conduct of certain intensity and persistence. It, therefore, covers the acts causing both physical and mental agony and torture, or tyranny and harm as well as unending accusations and recrimination reflecting bitterness putting the victim thereof to intense miseries & woes strongly stirring up her feeling that life is now not worth living and she should die, being the only option left. The provision of Sec. 498A therefore, envisages intention to drag or force the woman to commit suicide by unabetted, persistent & grave cruelty. In one case, therefore, the facts on record may constitute the cruelty showing required intention and in another case, it may not. The concept of cruelty, therefore, is found different or diversifying from place to place, individual to individual, and also according to social and economical status of the person and several other factors. The Court has, therefore, to becoming more heedful, chary & wary, exert and ascertain the cruelty & required intention on the basis of materials on record and also on the basis of the culture, ordinary sentimentality or sensitivity, capacity to tolerate, temperament, tendency, interse honour, matrimonial relationships, state of health, dissension, interaction, or conflicting ideology, will to dominate, utter disregard of one's own obligation or intractability or habits as well as customs & traditions governing the parties and other governing forces, provided necessary acceptable evidence in this regard is available on record.

7. The word "harassment" is not defined in Sec. 498A. The meaning of the word "harass" which can be found from the dictionary is to subject some one to unbearable, continuous or repeated or persistent unprovoked vexatious attacks, questions, demands, or persecutions, or brutality, or tyranny, or harm, or pain, or affliction, or other unpleasantness, or grave annoyance, or troubles. In short what can be said is that Sec. 498A will not come into play in every case of harassment and/or cruelty.

Reasonable nexus between cruelty and suicide must be established. It should, therefore, be shown that the incessant harassment or cruelty was with a

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view to force the wife to end her life or fulfil illegal demands of her husband or in-laws, and was not matrimonial cruelty, namely usual wear and tear of matrimonial life. It should hardly be stated that the prosecution has to establish the charge beyond reasonable doubt. No doubt arithmetical accuracy is not expected from the prosecution, but it has to adduce such evidence which would be credible leaving no room to any reasonable doubt; and pointing to the guilt of the accused."

13. Under the circumstances, since the prosecution is failed to prove cruelty or harassment meted to the deceased or any act of abetment of the accused, which instigated the deceased to commit suicide, the learned trial Judge has rightly acquitted the accused. Such judgment does not call for interference.

14. Even otherwise, 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, 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.

15. In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280, Supreme Court has held as under:

"The powers of the High Court in an appeal from order of

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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."

16. As observed by the 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.

17. In the case of Rajaram Vs. State of Madhya Pradesh and others reported in AIR 2023 SC 94, the Hon'ble Apex Court has reiterated the principles of multiple dying declarations.

18. On perusal of the impugned judgment, it appears that the

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learned trial Court has given cogent and convincing reasons for not believing the case of the prosecution. The learned trial Court has recorded the differences and inconsistency in two dying declarations.

19. Considering the aforesaid facts and circumstances of the case and law laid down by the 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.

20. In view of the above and for the reasons stated above, present Criminal Appeal deserves to be dismissed and is accordingly dismissed.

(J. C. DOSHI,J) SHEKHAR P. BARVE