Gujarat High Court
State Of Gujarat vs Hasmukhbhai Jethelal Pandya on 4 June, 2024
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R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 752 of 1995
With
R/CRIMINAL REVISION APPLICATION NO. 244 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
and
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
HASMUKHBHAI JETHELAL PANDYA & ANR.
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Appearance:
MS. MAITHILI MEHTA, APP for the Appellant(s) No. 1 - State
ABATED for the Opponent(s)/Respondent(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
MR MEHUL SHARAD SHAH(773) for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
and
HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 04/06/2024
ORAL JUDGMENT
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(PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)
1. Feeling aggrieved and dissatisfied with the judgment
and order of acquittal dated 03.05.1995 passed by the
learned Additional Sessions Judge, Mehsana in Sessions
Case No.216 of 1992, whereby the respondents herein -
original accused came to be acquitted for the offences
under Section 302 read with Section 34 alternatively
Section 114 of Indian Penal Code, 1860, the appellant -
State has preferred present appeal under section 378 of
the Code of Criminal Procedure, 1973 ("the Code" for
short).
2. The brief fact of the case of the prosecution against
the accused is as given below:
2.1 On 20/11/87, the complainant Vasudev Chhanlal
Pandya lodged his complaint in the court of the Judicial
Magistrate First Class, Mahesana and stated that the
complainant resides at the Vyas Mohalla in Mahesana.
The complainant has three daughters and two sons.
Chandrakant is the eldest son of the complainant and he
has a job in Gandhinagar. Geetaben was younger than
him. She was married with Narendra, the son of the
accused in this case. The married life of Narendra and
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Geeta was not amicable. The accused persons used to
mentally and physically harass the complainant's
daughter Geeta and they used to demand more dowry
and they used to drive her away after beating her. A
complaint in this regard had been lodged against the
accused persons in the Mahesana police station and a
case had also been filed. Thereafter, the accused persons
drove away the complainant's daughter. Therefore, the
complainant's daughter Geeta filed a complaint against
accused's son Narendra for maintenance. The said
application was granted by the Court and the order for
maintenance was passed. Thereafter, the accused took the
complainant's daughter to their home, but they would
not allow her to talk with anyone and they used to
harass her. But the complainant's daughter was
tolerating all these things. Because she was believing
that their behaviour would improve and her married life
would become smooth. However, the accused continued to
harass the complainant's daughter. On 15/10/87 at 8
O'clock in the morning, the accused tied the hands and
legs of the complainant's daughter and poured kerosene
on her at Pachot and the Accused No.1 set her ablaze
with a match-stick. The complainant's daughter shouted
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many times for help. Therefore, many people of the
street gathered there and tried to save her. But the
accused did not allow any of them to save her and
instigated them. Accused No.1 has sustained burn
injuries on his hands while setting the complainant's
daughter ablaze and he has taken treatment for the
same at the Mahesana Civil Hospital. With respect to
the said incident, the Accident Entry No.15/87 was
made in the Mahesana Taluka Police Station as per
section 174 of the Cr.P.C. and an investigation was
conducted. In this manner, the accused persons in this
case caused so much mental and physical harassment to
the complainant's daughter Geeta. As the economic
condition of the complainant was not sound, he was not
able to give more dowry. Therefore, the accused persons
murdered the complainant's daughter by setting her
ablaze.
2.2 On receiving the aforementioned complaint, the
Court conducted an inquiry as per section 202 of the
CrPC with respect to the same. During the inquiry, the
complainant gave his deposition. Moreover, a witness
named Darji Kantibhai Tapubhai was examined.
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Considering the depositions of the complainant and the
said witnesses, it appeared to the subordinate court that
there is prima facie evidence to believe that an offence
under section 302 read with section 34 of the IPC is
made out against the accused. Therefore, the case was
committed to the Sessions Court for trial. Thereafter,
when the case was transferred to this Court for trial,
the charge was framed against the accused persons for
the offence punishable under section 302 read with
section 34 of the IPC.
2.3 The accused pleaded not guilty for the charges
mentioned in the charge sheet and demanded for the
trial of the case. Therefore, the evidence of the
prosecution was recorded.
2.4 The prosecution examined Vasudevbhai
Chhanalal Pandya, eye-witness Kantibhai Tapubhai Darji
and Dr. Natwarbhai Rameshbhai Joshi, who conducted
the postmortem of the deceased Geetaben. On completion
of the evidence of the prosecution, further statements of
the accused persons were recorded. The accused stated in
their statements that the evidence against them is false.
At the time of the incident, Geetaben had gone to the
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third floor for making tea. At that time, when she
caught fire, she shouted for help and therefore, Accused
No.1 and No.2 went to the third floor to save her, and
they covered Geetaben with quilts etc., and put out the
fire. While saving her, the Accused No.1 sustained grave
burn injuries and he got treatment at the Mahesana
Civil Hospital and at the hospital of Dr. Majmudar as
an inpatient. To prove the contradictory statements in
the deposition of witness Kantibhai Tapubhai Darji which
appeared during the police statements, the prosecution
has examined witness Navinchandra Ambaram, who was
serving as the writer constable.
3. In pursuance of the complaint lodged by the
complainant with the Mehsana Police Station for the
alternatively Section 114 of the IPC, the investigating
agency recorded statements of the witnesses, drawn
panchnama of scene of offence, discovery and recovery of
weapons and obtained FSL report for the purpose of
proving the offence. After having found sufficient material
against the respondents - accused, charge-sheet came to
be filed in the Court of learned the JMFC, Mehsana. As
said Court lacks jurisdiction to try the offence, it
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committed the case to the Sessions Court, Mehsana, as
provided under Section 209 of the Code.
4. Upon committal of the case to the Sessions Court,
Mehsana, the learned Sessions Judge framed charge at
Exh.7 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 3 witnesses and also produced various
documentary evidence before the learned trial court, more
particularly described in para 5 of the impugned
judgment and order.
6. On conclusion of evidence on the part of the
prosecution, the learned 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.
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7. Both the proceedings, Criminal Appeal No.752 of
1995 against acquittal and Criminal Revision Application
No.244 of 1995 against the order of acquittal dated
03.05.1995 passed by the trial Court in Sessions Case
No.216 of 1992, are taken together and considered
accordingly.
8. Heard learned APP Ms. Maithili Mehta for the
appellant - State and learned advocate Mr. Mehul
Sharad Shah for the respondent No.2. It is also required
to be noted that vide order dated 28.06.2022, the appeal
qua the respondent No.1 - original accused No.1-
Hasmukhbhai Jethalal Pandya is abated as he had
expired on 22.07.2015, therefore, appeal is considered
only for the respondent No.2 - Pushpaben Hasmukhlal
Pandya.
9. Learned APP, Ms. Maithili Mehta has submitted
that there is evidence of the eye witness on the record
as prosecution witness No.3 at Exh.27- Kantilal Tapubhai
Daraji and she has drawn our attention towards the
deposition given by the witness in examination-in-chief,
as P.W.3 has stated that when he was stitching clothes
at the first floor of the house of the present respondents
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on 15.10.1987, in the morning at about 10:30 a.m., he
heard the shouting "save, save" from the deceased-
Gitaben Pandya and therefore, he rushed to the second
floor of the house where it is found that the deceased-
Gitaben was burning and who happens to be the
daughter-in-law of the present respondents and he found
that accused No.1- Hasmukhbhai, who expired during the
pendency of the appeal was moving around the deceased-
Gitaben and he is also having some burn injuries on his
hands and legs and thereafter, the witness has returned
back, in the same breath, he has added in his
examination-in-chief, additionally, that now he is stating
that he has also seen the accused No.2- Pushpaben, who
has poured Kerosene and accused No.1- Hasmukhbhai
has ignited the matchstick and when he went to the
place of the incident, he found that hands and legs of
the deceased- Gitaben was tied with the rope. Learned
APP has further drawn our attention towards the
deposition of the Doctor Natwarlal Ramjibhai Joshi, who
has examined as P.W.1 at Exh.21 and submitted that he
has also supported the case of the prosecution, however,
she has drawn attention of this Court that the Doctor
has stated that the accused No.1- Hasmukhbhai has
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brought the deceased to his hospital at about 10:30 a.m.
but she has further submitted that the Doctor has also
supported the case of the prosecution that Kerosene is
poured on the body of the deceased and therefore, she
has submitted that the trial Court has committed error
in acquitting the accused persons.
9.1 Learned APP has further drawn our attention
towards the other documentary evidence; Complaint,
F.S.L. report as well as P.M. note and various
Panchnamas. She has also drawn our attention towards
the deposition of the complainant - Vasudev Chhanalal
Pandya, who has deposed as Prosecution Witness No.2 at
Exh.23 and submitted that from his deposition, it
transpires that there was a dispute going on between
the deceased and her husband and the case of the
complainant that the present respondents, who happens
to be father-in-law and mother-in-law of the deceased
were giving mental and physical torture and thereafter,
the deceased was residing with the father at her
parental house and has also claimed maintenance and
thereafter, once again the accused persons have requested
to send the deceased to her matrimonial house and
accordingly, the deceased was residing with the present
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respondents - accused persons and considering the
deposition of the father which also supports the case,
when other panchnamas also clearly supports the case
and therefore, she has submitted that the Court below
has committed gross error in appreciating the material
evidence available on the record as, prima facie, offences
were made out against the present accused persons and
the offences punishable under Section 302 read with
Section 34 alternatively Section 114 of the IPC. She has
also drawn our attention towards the charge framed by
the trial Court at Exh.7, whereby, charge of above-
mentioned Sections came to be framed. She has also
submitted that the prosecution has proved its case
beyond reasonable doubt and therefore, the trial Court
has committed error in acquitting the accused persons on
erroneous ground.
10. Per contra, learned advocate Mr. Mehul Sharad
Shah for the respondent No.2 - original accused has
strongly opposed the submissions made at the bar and
has supported the judgment passed by the trial Court
and has further submitted that the trial Court after
appreciating the evidence and after considering the
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conduct of the witnesses and also the contradictions of
the evidence and also considering the aspect of over
implications of the accused persons, has rightly come to
the conclusion and the prosecution has failed to prove its
case under provisions of Section 302 read with Sections
34 alternatively 114 of the IPC. The Court has also
observed that there is no charge framed under Section
306 or 498(A) of the IPC and therefore, Court below has
acquitted the accused persons as the prosecution has
failed to prove its case and therefore, the trial Court has
given proper and convincing reasons after appreciating
evidence for acquittal and therefore, there is no
perversity or illegality committed by the trial Court and
therefore, the present appeal as well as the Criminal
Revision Application filed by the original complainant are
required to be dismissed.
11. Learned Senior Advocate Mr. Prakash K. Jani
appearing on behalf of the original-complainant in
captioned Criminal Revision Application. Considering the
submissions made by the learned APP Ms. Maithili
Mehta, the matters are considered together and
proceeded accordingly for final adjudication of the appeal
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as well as the Criminal Revision Application.
12. It transpires from the material available on the
record that the charge is framed against the present
respondent No.2 as well as deceased-respondent No.1,
who happens to be mother-in-law and father-in-law
respectively of the deceased-Gitaben, who died in an
unfortunate incident dated 15.10.1987 between 10 a.m. to
10:30 a.m. at the third floor of her matrimonial house
and charge is framed accordingly. It also transpires that
the complaint is registered pursuant to the alleged
incident by the father of the deceased namely Vasudev
Chhanalal Pandya on 16.03.1995 by stating that his
daughter-Gitaben married nine years back with the son
of the present respondents namely Narendrakumar H.
Pandya and there was matrimonial dispute going on
between the husband and wife and Gitaben was residing
for some period with the complainant due to such
quarrels were going on and there is litigation also going
on between the parties for maintenance etc. Thereafter,
Gitaben was again residing with the accused persons at
her matrimonial house and at the time of the incident,
the complainant came to know that his daughter died
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due to burn injuries and on inquiry with the neighbours,
he found that her father-in-law and mother-in-law have
jointly committed offence by pouring kerosene on the
deceased- Gitaben and thereafter, igniting the matchstick
and Gitaben is burnt due to that incident and therefore,
the complaint is given. The Police has carried out the
investigation and recorded statement of one witness who
is claiming that he was stitching clothes at the residence
of the accused Nos.1 and 2, where the deceased was
residing and by perusing the version of that witness
who is P.W.3, who was examined at Exh.27- Kantilal
Tapubhai Daraji, it transpires that in examination-in-
chief, he has stated the he was stitching clothes at first
floor of the house and at the second floor of the house
he found that Gitaben was shouting and when he
reached the place of incident, he found that Gitaben was
burning and found that accused No.1- Hasmukhbhai was
standing near Gitaben and also having injuries and
thereafter, he returned back to his place. Thereafter, he
has added in his deposition in examination-in-chief that
he has also found that accused No.2- Pushpaben has
poured the kerosene and accused No.1- Hasmukhbhai
was igniting the matchstick and when he went at the
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place of incident, he found that hands as well as legs of
Gitaben were tied with ropes. The incident stated
happened at 10:30 a.m. and as per the deposition of
Kantilal Tapubhai Daraji, the deceased- Gitaben was
taken to the hospital at about 3 to 4 o'clock, where she
was found dead. In cross-examination, he has submitted
that earlier he went to depose before the Court
regarding the same incident and in that deposition, he
has stated that at the time of incident, accused No.1-
Hasmukhlal Jethalal Pandya was performing 'pooja' and
Pushpaben Hasmuklal Pandya- accused No.2 was busy
with cooking activity and Gitaben was also doing some
household work and when he was working and stitching
clothes, he found that there is some shouting in the
outside from the residence of other persons. He has
heard the shouting of the other persons that something
is being burnt on the above floors of the house and
thereafter, some of the persons have run over the said
floor and thereafter, he had also run over towards that
floor and at that point of time, at the third floor,
Gitaben was burning and thereafter, some of the persons
have brought Hasmukhlal and at that point of time, the
witness has found that Hasmukhlal was also burnt on
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the fingers of the hand and on the legs and also having
some burn injuries on the face as well as hairs.
Thereafter, they have taken the deceased- Gitaben in the
'Hathlaari' to the nearby hospital and thereafter, he went
to his house after closing work. He has also admitted
that he was working in the house of the accused persons
since last two days, but he never heard about any
quarrel between the deceased as well as the accused
persons. He has also admitted in his cross-examination
that he has forgotten when he has deposed before the
Magistrate on earlier occasion while giving the statement
that he has not stated that respondent No.2 -
Pushpaben has poured the kerosene and respondent No.1
- Hasmukhbhai has ignited the matchstick.
12.1 Considering all the aforesaid aspects, it clearly
transpires that the deposition of witness - Kantilal T.
Daraji is not trustworthy at all. He has also given
incorrect version in his examination-in-chief that incident
has occurred at second floor and he was stitching at
first floor. In fact, from the material available on the
record and even he has admitted in his cross-
examination that the incident has taken place at the
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third floor of the house. Moreover, there is no whisper
about the pouring of kerosene by the respondent No.2 -
original accused No.2 and the igniting of matchstick by
the respondent No.1 - original accused No.1. Moreover,
he has also given contradictory version about the
presence of other persons, who rushed from outside to
save the deceased. He has also given contradictory
version about the activities carried out by the accused
Nos.1 & 2 at the time of incident.
12.2 Now, considering the deposition of the
complainant - Vasudev Chhanalal Pandya; it transpires
that his deposition is based on hearsay evidence. Being
father of the married daughter - deceased, it seems that
he has given his complaint, but he is not having any
personal knowledge about the occurrence of incident and
he has given past history, which may indicate about any
mental harassment or any cruelty, but no charge has
been framed under Sections 306 or 498(A) of the I.P.C.,
and evidence has also not been led in that direction, no
investigation has been carried out as well. Therefore, the
version of complainant - Vasudev Chhanalal Pandya is
also not corroborated by the evidence available on the
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record.
12.3 Now, considering the deposition of doctor - PW-
1, who has given his version at Exh.21; he has
specifically deposed that at about 10:30 a.m., respondent
No.1 (Hasmukhlal Jethalal Pandya) - original accused
has brought the deceased - Gitaben to his hospital.
When, the doctor received the dead-body of deceased -
Gitaben, he had started the postmortem at 5:15 p.m. on
15.10.1987 and completed the postmortem on 6:30 p.m. It
also transpires from the record that respondent No.1
(Hasmukhlal Jethalal Pandya) - original accused has also
received some burn injuries, who has also been examined
by the doctor at 10:30 a.m. on 15.10.1987. He has also
deposed that he has not given his opinion about the
cause of death immediately after completing the
postmortem, and waited for F.S.L. report, and thereafter,
he has given the report about the cause of death. The
deceased was having superficial injuries, and accused
No.1 has also received injuries up to 40% in his body.
12.4 Additionally, it also transpires that accused
No.1 has given further statement at Exh.30, stating that
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when he found that something is burning on the top
floor of the house, as somebody has shouted from the
outside, he, alongwith his wife, immediately went to the
top floor, and found that their daughter-in-law - Gitaben
was burning, and then, tried to save her. While doing
so, respondent No.1 (Hasmukhlal Jethalal Pandya) -
original accused has also received some burn injuries. He
has also stated that respondent No.2 - Pushpaben
Hasmukhlal Pandya has also tried to save Gitaben with
the help of quelt (Godara). Further statement has been
given by respondent No.2 - Pushpaben Hasmukhlal
Pandya at Exh.31 by giving her deposition on the same
line.
12.5 It is also found from the record that the State
has also dropped Panch witnesses and P.S.O. by
application at Exh.26. Therefore, only three witnesses
were examined; (i) complainant - Vasudev Chhanalal
Pandya (ii) doctor, who has performed the postmortem,
and (iii) Kantilal T. Daraji - the person, who is claiming
that he was present at the time of incident. Deposition
of Kantilal is not at all trustworthy. The version of the
complainant - Vasudev Chhanalal Pandya is not
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corroborated by the evidence available on the record. On
the contrary, the deposition of the doctor indicates that
there is possibility that accused persons have tried to
save deceased, while she was burning. It also clearly
transpires that Kantilal has tried to improvise his
deposition with a view to support the case of the
prosecution. The complaint of the complainant is also not
required to be believed as when the complainant gave
his deposition in the Court, on earlier occasion i.e. on
30.10.1987, at that point of time, he has not referred the
so-called eyewitness - Kantilal T. Daraji. When the
complaint was given 20.11.1987 before the Court, at that
time also, the name of Kantilal T. Daraji was not
mentioned. Therefore, the say of the complainant that
hands and legs of his daughter was tied with rope by
the accused persons and subsequently, they have burnt
his daughter by powering kerosene and igniting the
matchstick, this fact came to his knowledge from various
persons, is not explained at all or not explained by the
deposition of the other witnesses, who claimed to be
present at the place of incident, who are neighbours or
nearby residents and has also rushed to save Gitaben,
they are also not examined. The various Panchnamas are
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also not proved by examining the Panch witnesses. The
trial Court has considered the evidence of the three
witnesses in detail, and has come to the correct
conclusion that the case is not proved at all by the
prosecution. The charges, which are framed, under
Section 302 read with Sections 34 alternatively 114 of
the Indian Penal Code, 1860, is not proved by cogent
and convincing material. The deposition of various
witnesses are inconsistent and contradictory as well as
are with a view to over implicate the accused persons.
The trial Court has rightly come to the conclusion. There
is no material available on the record and the case is
not proved by the prosecution as per the charge. The
PW-3 - Kantilal T. Daraji is also found got up witness
with a view to implicate the accused persons by the
complainant, merely, on the basis of suspicion that
accused persons have committed offence as alleged in the
complaint.
12.6 Therefore, considering the totality of the
material available on the record and facts and
circumstances of the present case and considering the
provisions of Section 302 read with Sections 34
alternatively 114 of the Indian Penal Code, 1860, we
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found that the prosecution has miserably failed to prove
its case and the trial Court has rightly acquitted the
accused persons. After re-appreciating the entire evidence,
we are in consonance with the findings of the trial court
as there is no illegality or perversity committed by the
trial Court while considering the case of the prosecution
on merits and thereafter, acquitting the accused persons
as the prosecution has failed to prove its case by giving
proper evidence and sterling quality of proof. Therefore,
no interference is called for by this Court.
12.7 In view of the scope of acquittal appeal, for
which, the legal position is discussed hereinafter. We are
of the opinion that there is no reason for this Court,
even after re-appreciating the entire evidence, to interfere
and to upset the findings given by the trial Court and
the trial Court has not committed any error in
acquitting the accused persons.
12.8 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 learned trial court are
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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, learned
APP for the appellant 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.
12.9 It is fruitful to refer the provisions of Section
302 read with Section 34 alternatively 114 of Indian
Penal Code, 1860, which are as under:
"Section 302 in The Indian Penal Code, 1860:-
302. Punishment for murder.--
Whoever commits murder shall be punished with death, or
imprisonment for life, and shall also be liable to fine.
Section 34 in The Indian Penal Code, 1860:-
34. Acts done by several persons in furtherance of common
intention.--
When a criminal act is done by several persons in
furtherance of the common intention of all, each of such
persons is liable for that act in the same manner as if it
were done by him alone.
Section 114 in The Indian Penal Code, 1860:-
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114. Abettor present when offence is committed.--
Whenever any person, who is absent would be liable to be
punished as an abettor, is present when the act or offence
for which he would be punishable in consequence of the
abetment is committed, he shall be deemed to have
committed such act or offence."
12.10 It is also relevant to refer the provisions of
Section 378 of the Code, as under:
"Section 378 in The Code of Criminal Procedure, 1973:-
378. Appeal in case of acquittal.
[(1) Save as otherwise provided in sub-section (2) and
subject to the provisions of sub-sections (3) and (5),-
(a) the District Magistrate may in any case, direct the
Public Prosecutor to present an appeal to the Court of
Session from an order of acquittal passed by a Magistrate
in respect of a cognisable and non-bailable offence;
(b) the State Government may, in any case, direct the
Public Prosecutor to present an appeal to the High Court
from an original or appellate order of an acquittal passed
by any Court other than a High Court [not being an order
under clause(a)] or an order of acquittal passed by the
Court of Session in revision.]
(2) If such an order of acquittal is passed in any case in
which the offence has been investigated by the Delhi
Special Police Establishment constituted under the Delhi
Special Police Establishment Act, 1946 (25 of 1946), or by
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any other agency empowered to make investigation into an
offence under any Central Act other than this Code,
[the Central Government may subject to the provisions of
sub-Section (3), also direct the Public Prosecutor to present
an appeal-
(a) to the Court of Session, from an order of acquittal
passed by a Magistrate in respect of a cognisable and non-
bailable offence;
(b) to the High Court from an original or appellate order of
an acquittal passed by any Court other than a High Court
[not being an order under clause (a)] or an order of
acquittal passed by the Court of Session in revision.
(3) No appeal to the High Court] [Substituted by Act 25 of
2005, Section 32, for "No appeal" (w.e.f. 23-6-2006).] under
sub-section (1) or sub-section (2) shall be entertained except
with the leave of the High Court.
(4) If such an order of acquittal is passed in any case
instituted upon complaint and the High Court, on an
application made to it by the complainant in this behalf,
grants special leave to appeal from the order of acquittal,
the complainant may present such an appeal to the High
Court.
(5) No application under sub-section (4) for the grant of
special leave to appeal from an order of acquittal shall be
entertained by the High Court after the expiry of six
months, where the complainant is a public servant and
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sixty days in every other case, computed from the date of
that order of acquittal.
(6) If, in any case, the application under sub-section (4) for
the grant of special leave to appeal from an order of
acquittal is refused, no appeal from that order of acquittal
shall lie under sub-section (1) or under sub-section (2)."
12.11 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
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."
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12.12 As observed by the Hon'ble Supreme Court in
the case of Rajesh Singh & Others vs. State of Uttar
Pradesh reported in (2011) 11 SCC 444 and in the case
of Bhaiyamiyan Alias Jardar Khan and Another vs. State
of Madhya Pradesh reported in (2011) 6 SCC 394, while
dealing with the judgment of acquittal, unless reasoning
by the learned trial court is found to be perverse, the
acquittal cannot be upset. It is further observed that
High Court's interference in such appeal in somewhat
circumscribed and if the view taken by the learned trial
court is possible on the evidence, the High Court should
stay its hands and not interfere in the matter in the
belief that if it had been the trial court, it might have
taken a different view.
12.13 Scope and interference by the appellate Court
in acquittal appeal is very limited. The Hon'ble Privy
Council has discussed the scope and interference in
acquittal appeal in the case of Sheo Swarup v. King
Emperor, AIR 1934 PC 227 and held as under:-
"While dealing with an appeal against acquittal, the High
Court should and will always give proper weight and
consideration to such matters as-
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(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 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."
12.14 Further, considering the law laid down in the
case of Babu Sahebagouda Rudragoudar v. State of
Karnataka, reported in 2024 SCC OnLine SC 561, every
criminal trial starts with general presumption and one of
the cardinal principle of criminal jurisprudence is that,
there is a presumption of innocence in favour of the
accused, unless proven guilty. Burden of proving the case
of the prosecution always rests on the shoulder of the
prosecution. As a consequence, the onus on the
prosecution becomes more burdensome as there is a
double presumption of innocence, which gathers strength
before the appellate Court.
12.15 It is also relevant to note that the Hon'ble
Apex Court has time and again considered the aspect of
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consideration of appeal against the order of acquittal
under the provisions of Section 378 of the Code and
interference by the higher Court, and exercise of such
power is well established by the recent judgment of the
Hon'ble Apex Court in the case of Mallappa and Others
vs. State of Karnataka reported in (2024) 3 SCC 544,
and the entire law has been discussed in paragraph
Nos.25 to 46, as under:
"25. We may firstly discuss the position of law regarding the scope of
intervention in a criminal appeal. For, that is the foundation of this
challenge. It is the cardinal principle of criminal jurisprudence that there
is a presumption of innocence in favour of the accused, unless proven
guilty. The presumption continues at all stages of the trial and finally
culminates into a fact when the case ends in acquittal. The presumption
of innocence gets concretized when the case ends in acquittal. It is so
because once the Trial Court, on appreciation of the evidence on record,
finds that the accused ase ends in acquittal. The presumption of
innocence gets concretized when the case ends in acquittal. It is so
because once the Trial Court, on appreciation of the evidence on record,
finds that the accusedwas not guilty, the presumption gets strengthened
and a higher threshold is expected to rebut the same in appeal.
26. No doubt, an order of acquittal is open to appeal and there is no
quarrel about that. It is also beyond doubt that in the exercise of
appellate powers, there is no inhibition on the High Court to re-
appreciate or re-visit the evidence on record. However, the power of the
High Court to re-appreciate the evidence is a qualified power, especially
when the order under challenge is of acquittal. The first and foremost
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question to be asked is whether the Trial Court thoroughly appreciated
the evidence on record and gave due consideration to all material pieces
of evidence. The second point for consideration is whether the finding of
the Trial Court is illegal or affected by an error of law or fact. If not,
the third consideration is whether the view taken by the Trial Court is
a fairly possible view. A decision of acquittal is not meant to be
reversed on a mere difference of opinion. What is required is an
illegality or perversity.
27. It may be noted that the possibility of two views in a criminal case
is not an extraordinary phenomenon. The 'two-views theory' has been
judicially recognized by the Courts and it comes into play when the
appreciation of evidence results into two equally plausible views.
However, the controversy is to be resolved in favour of the accused. For,
the very existence of an equally plausible view in favour of innocence of
the accused is in itself a reasonable doubt in the case of the
prosecution. Moreover, it reinforces the presumption of innocence. And
therefore, when two views are possible, following the one in favour of
innocence of the accused is the safest course of action. Furthermore, it
is also settled that if the view of the Trial Court, in a case of acquittal,
is a plausible view, it is not open for the High Court to convict the
accused by reappreciating the evidence. If such a course is permissible,
it would make it practically impossible to settle the rights and liabilities
in the eyes of law.
28. In Selvaraj v. State of Karnataka, "
13. Considering the reasons given by the trial court and on appraisal of
the evidence, in our considered view, the view taken by the trial court
was a possible one. Thus, the High Court should not have interfered
with the judgment of acquittal. This Court in Jagan M. Seshadri v.
State of T.N. [(2002) 9 SCC 639] has laid down that as the appreciation
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of evidence made by the trial court while recording the acquittal is a
reasonable view, it is not permissible to interfere in appeal. The duty of
the High Court while reversing the acquittal has been dealt with by this
Court, thus:
"9. ...We are constrained to observe that the High Court was dealing
with an appeal against acquittal. It was required to deal with various
grounds on which acquittal had been based and to dispel those grounds.
It has not done so. Salutary principles while dealing with appeal against
acquittal have been overlooked by the High Court. If the appreciation of
evidence by the trial court did not suffer from any flaw, as indeed none
has been pointed out in the impugned judgment, the order of acquittal
could not have been set aside. The view taken by the learned trial court
was a reasonable view and even if by any stretch of imagination, it
could be said that another view was possible, that was not a ground
sound enough to set aside an order of acquittal."
(emphasis supplied)
29. In Sanjeev v. State of H.P., the Hon'ble Supreme Court analyzed
the relevant decisions and summarized the approach of the appellate
Court while deciding an appeal from the order of acquittal. It observed
thus:
"7. It is well settled that:
7.1. While dealing with an appeal against acquittal, the reasons which
had weighed with the trial court in acquitting the accused must be dealt
with, in case the appellate court is of the view that the acquittal
rendered by the trial court deserves to be upturned (see Vijay Mohan
Singh v. State of Karnataka5, Anwar Ali v. State of H.P.6)
7.2. With an order of acquittal by the trial court, the normal
presumption of innocence in a criminal matter gets reinforced (see Atley
v. State of U.P.7)
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7.3. If two views are possible from the evidence on record, the appellate
court must be extremely slow in interfering with the appeal against
acquittal (see Sambasivan v. State of Kerala8)"
30. In this case, the case of the prosecution substantially rests on the
testimonies of PW-3 and PW-4 read with various documents, especially
the reports of medical examination and post mortem.
31. PW3 is the eye witness of the incident. His testimony has been
rejected by the Trial Court by terming it as artificial. PW-3 deposed
that he was present at the place of incident when the accused persons
started assaulting the deceased and PW-4 on 28.06.1997 at around 4
P.M. PW-3 deposed that A3 had assaulted PW-4 as he was running for
his life along with PW-3. PW-4 was attacked from the back and PW-3
successfully managed to hide behind the bushes. Notably, PW-3 hid
behind the bushes and observed the assault till Marthandappa was dead
and PW-4 was unconscious. He then came out to check them and
fearing for his life, he again rushed behind the bushes. He admitted
that he was hiding behind the bushes till sunset. Thereafter, he came
out and started walking towards Devpura, although he admitted that
there were a number of buses plying on the route. But PW-3 takes no
bus and keeps walking towards Devpura. On reaching there, he sat at
the bus stand and kept on sitting there. Fast forward to the next
morning, PW-3 catches the bus only at 6 A.M. on the next morning.
The explanation as to how PW-3 spent the entire intervening night of
28- 29.06.1997 is missing from the chain of circumstances.
32. The statement that he was simply sitting at the bus stand for
the entire night, while Marthandappa was dead and PW-4 was severely
injured and unconscious, fails to inspire confidence. More so, when the
entire reason for hiding behind the bushes was the fear of life. Despite
such fear, PW-3 did not choose to inform the police out-post, on the way
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from Devpura to Aidbhavi, and rather, he kept on sitting at the
Devpura bus stop. He also admitted that his relatives were residing
around 4 km from the place of incident at Nagaral. However, he chose
not to inform them either. He also admitted that he took no steps to
provide medical treatment to PW-4 who was lying unconscious at the
place of incident as a result of the assault. The said fact could have
been entertained if the place of incident was completely secluded. Such
is not the case, as it is admitted that the place of incident fell on a
bus route and buses were indeed plying.
33. It was almost 18 hours after the assault that PW-3 managed to
reach Aidbhavi to inform PW-2 about the incident. The High Court
found the conduct of PW-3 to be perfectly natural, as it was
understandable that PW-3 wanted to inform PW-2 before anyone else.
Such conduct would have been justified if PW-2 was residing in close
proximity of the place of incident. The very fact that PW-3 did not even
contemplate about providing medical help to PW-4 or to seek protection
from the local police despite such a drastic assault and instead, chose to
wait for 18 hours, raises a reasonable doubt on the credibility of his
version. This circumstance assumes a greater importance in light of the
fact that PW4 was the cousin brother of PW3 and not some stranger.
The conduct of PW-3 was not that of a reasonable man placed in such
circumstances and the Trial Court was right in terming it as artificial.
34. The conduct of PW-3 renders his very presence at the place of
incident as doubtful. Despite a heavy assault by multiple accused
persons, he did not suffer any injury at all. That too when he was
indeed chased by A3 while attacking PW-4. It is extremely doubtful that
the assailants simply chose to give up on PW-3 and did not pursue him
behind the bushes, despite knowing that PW-3 could turn out to be an
eye witness of the incident. The story that follows the story of hiding
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behind the bushes is equally doubtful and leaves one speculating. The
timelines, the route taken by PW-3, complete disregard for severely
injured PW-4, failure to inform the police post despite access to it etc.
are some of the factors that raise a reasonable doubt on the entire
story. The chain of circumstances created by the testimony of PW-3 is
not consistent with the outcome of guilt.
35. The version of PW-4 is that he was attacked from the back by A3
and thereafter, he fell unconscious. As per his testimony and the
testimony of PW-3, PW-4 was attacked by an axe on his head, back and
scrotum. The first point of corroboration is to be seen from the
circumstances following the assault. The assault on PW-4 took place at
around 4 P.M. and he was admittedly unconscious thereafter. He
remained as such until he was "self-admitted" in the hospital at around
12:30 P.M. the following day. The second point for corroboration of this
version could be taken from the wound certificate issued by PW-8 during
the treatment of PW-4 at Government Hospital, Shorapur. The Trial
Court relied upon the wound certificate and noted a contradiction
between the condition of PW-4 at the time of admission. In the
certificate, PW-4 is stated to be "self-admitted" but at the same time, he
is stated to be unconscious. The High Court rejected this contradiction
as material by observing that PW-4 was semi-conscious at the time of
admission and therefore, he could have admitted himself in the hospital.
However, the inherent contradictions in the statement of PW-4 are not
limited to this point.
36. The injuries found on PW-4, as per the wound certificate, were
simple in nature. PW-8 gave some treatment to PW-4, however the
nature of treatment is not indicated. Thereafter, PW-8 forwarded him to
a hospital at Gulbarga where injury certificate Ex.P12 was prepared.
Ex.P12 also recorded the nature of injury to be simple in nature. The
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nature of injury is to be corroborated with the nature of assault, as
deposed by PW-4 and PW-3. They deposed that A3 had attacked PW-4
with an axe at three sensitive places i.e. head, back and scrotum. The
attack was so severe that PW-4 immediately fell unconscious. In the
ordinary course of natural events, an injury inflicted by an axe, that too
in a manner that the injured immediately fell unconscious and remained
unconscious for almost 20 days, could not have been a simple injury.
More so, a simple injury of a standard that required no admission in
the hospital.
37. Furthermore, PW-4 travelled to the hospital at Shorapur by a
bus, but he failed to inform any passenger about the assault. Despite
such injuries, including on the head, no one noticed his condition. He
was unconscious for over 20 days and after he regained consciousness,
his statement was recorded by PW-10. It is difficult to comprehend as to
how a severely injured person, who could not gain consciousness before
20 days, managed to go to the hospital on his own by using a public
bus and later, to another hospital at a different place. It is difficult to
comprehend that PW-4 was conscious enough to undertake two journeys
to two different hospitals, by public transport, but did not have the
senses to give a statement to the IO PW-10 before the passage of
almost 30 days. During cross examination, PW-4 had deposed that he
had sustained injuries on head and testicles only, and there was no
other injury. The said statement was a material improvement from the
versions initially put forth by PW-3 and PW-4 whereby, PW-4 had
sustained injuries on the back as well. However, no such injury was
recorded in the wound certificate and in all likelihood, the improvement
was made for that reason. The testimony of PW-4 is impeachable for
another reason - the time of the offence. As per his version, the time of
assault was around 4 P.M., whereas, as per the wound certificate
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Ex.P12, the time of injury was at night. Similar issue with respect to
timing was noticeable in the post mortem report as well.
38. Notably, all these aspects have been carefully analysed and
appreciated by the Trial Court, but the High Court rejected all the
doubts by observing that PW-4 was an injured witness and there was no
reason to disbelieve his testimony. The High Court omitted to take note
of two material aspects - the fact that the statement of PW-4 was
recorded after a period of one month from the date of incident and the
factum of family relationship between the deceased and PW-4. The
former aspect raises a grave suspicion of credibility, whereas the latter
raises the suspicion of being an interested witness. In normal
circumstances, where a testimony is duly explained and inspires
confidence, the Court is not expected to reject the testimony of an
interested witness, however, when the testimony is full of contradictions
and fails to match evenly with the supporting evidence (the wound
certificate, for instance), a Court is bound to sift and weigh the evidence
to test its true weight and credibility.
39. Pertinently, the Trial Court had reached its decision after a
thorough appreciation of evidence and we have no doubt in observing
that the view taken by the Trial Court was indeed a legally permissible
view. The High Court went on to reverse the decision by taking its own
view on a fresh appreciation of evidence. Moreover, the High Court did
so without recording any illegality, error of law or of fact in the decision
of the Trial Court. In our considered view, the same was not permissible
for the High Court, in light of the law discussed above. Setting aside an
order of acquittal, which signifies a stronger presumption of innocence,
on a mere change of opinion is not permissible. A low standard for
turning an acquittal into conviction would be fraught with the danger of
failure of justice.
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40. So far as the question of independent appreciation of evidence by
the High Court is concerned, be it noted that the High Court was fully
empowered to do so, but in doing so, it ought to have appreciated the
evidence in a thorough manner. In the present case, the High Court has
not done so. Even the aspects discussed by the Trial Court have not
been fully addressed and the High Court merely relied on a limited set
of facts to arrive at a finding. The factors which raised reasonable
doubts in the case of the prosecution were ignored by the High Court.
For instance, the contradictions pertaining to time, which were carefully
analyzed by the Trial Court, were not examined by the High Court at
all. Similarly, the contradictions qua the nature of injuries were also not
discussed. In an appeal, as much as in a trial, appreciation of evidence
essentially requires a holistic view and not a myopic view. Appreciation
of evidence requires sifting and weighing of material facts against each
other and a conclusion of guilt could be arrived at only when the entire
set of facts, lined together, points towards the only conclusion of guilt.
Appreciation of partial evidence is no appreciation at all, and is bound
to lead to absurd results.
41. A word of caution in this regard was sounded by this Court in
Sanwat Singh v. State of Rajasthan, wherein it was observed thus:
"9. The foregoing discussion yields the following results : (1) an appellate
court has full power to review the evidence upon which the order of
acquittal is founded; (2) the principles laid down in Sheo Swarup case
[LR 61 IA 398] afford a correct guide for the appellate court's approach
to a case in disposing of such an appeal; and (3) the different
phraseology used in the judgments of this Court, such as, (i) "substantial
and compelling reasons", (ii) "good and sufficiently cogent reasons", and
(iii) "strong reasons", are not intended to curtail the undoubted power of
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an appellate court in an appeal against acquittal to review the entire
evidence and to come to its own conclusion; but in doing so it should
not only consider every matter on record having a bearing on the
questions of fact and the reasons given by the court below in support of
its order of acquittal in its arriving at a conclusion on those facts, but
should also express those reasons in its judgment, which lead it to hold
that the acquittal was not justified."
(emphasis supplied)
42. Our criminal jurisprudence is essentially based on the promise that
no innocent shall be condemned as guilty. All the safeguards and the
jurisprudential values of criminal law, are intended to prevent any
failure of justice. The principles which come into play while deciding an
appeal from acquittal could be summarized as:
(i) Appreciation of evidence is the core element of a criminal trial and
such appreciation must be comprehensive - inclusive of all evidence, oral
or documentary;
(ii) Partial or selective appreciation of evidence may result in a
miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views are
possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view, mere
possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal
on a re-appreciation of evidence, it must specifically address all the
reasons given by the Trial Court for acquittal and must cover all the
facts;
(vi) In a case of reversal from acquittal to conviction, the appellate
Court must demonstrate an illegality, perversity or error of law or fact
in the decision of the Trial Court.
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43. In this case, the appellants, as a separate argument, have also
submitted that the case is not based on circumstantial evidence and is
based on direct evidence of PW-3 and PW-4, and therefore, the principles
of circumstantial evidence shall not apply. The submission is erroneous
for various reasons. First, the direct evidence of PW-3 and PW-4 is to
be tested on its own strength, especially in light of their subsequent
conduct after the incident. As per their version, they were accessories to
the fact, however, their subsequent conduct left much to be desired and
therefore, their direct testimony was found to be incredible, as already
discussed above. Secondly, in the absence of credible direct evidence, the
case essentially falls back on the circumstantial evidence, and thirdly,
the prosecution has failed to complete the chain of circumstances. The
contradictions between oral testimonies and medical examination reports,
failure to seize essential materials from the scene of crime, failure to
explain the mode of conveyance while going from one place to another,
failure to prove the presence of PW-3 at the place of incident, failure to
corroborate the injuries etc. are some of the deficiencies in the chain of
circumstances. It would be apposite to refer to the decision of this Court
in Sharad Birdhichand Sarda v. State of Maharashtra10, wherein the
"Panchsheel" or five principles of circumstantial evidence were laid down
as follows:
"153. A close analysis of this decision would show that the following
conditions must be fulfilled before a case against an accused can be said
to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn
should be fully established.
It may be noted here that this Court indicated that the circumstances
concerned "must or should" and not "may be" established. There is not
only a grammatical but a legal distinction between "may be proved" and
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"must be or should be proved" as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] where the
observations were made:
"19. ...Certainly, it is a primary principle that the accused must be
and not merely may be guilty before a court can convict and the mental
distance between 'may be' and 'must be' is long and divides vague
conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis
of the guilt of the accused, that is to say, they should not be
explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency,
(4) they should exclude every possible hypothesis except the one to be
proved, and
(5) there must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence of the
accused and must show that in all human probability the act must have
been done by the accused."
45. The circumstances in this case are far from conclusive and a
conclusion of guilt could not be drawn from them. To sustain a
conviction, the Court must form the view that the accused "must have"
committed the offence, and not "may have". As noted in Sharad
Birdichand Sarda11, the distinction between "may have" and "must have"
is a legal distinction and not merely a grammatical one.
46. In light of the foregoing discussion, we hereby conclude that the
High Court had erred in reversing the decision of acquittal, without
arriving at any finding of illegality or perversity or error in the
reasoning of the Trial Court. Even on a fresh appreciation of evidence,
we find ourselves unable to agree with the findings of the High Court.
Accordingly, the impugned order and judgment are set aside. We find no
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infirmity in the order of the Trial Court and the same stands restored.
Consequently, the appellants are acquitted from all the charges levelled
upon them. The appellants are directed to be released forthwith, if lying
in custody."
13. In view of the above decision, we find that the
view taken by the learned trial court, while acquitting
the accused persons is possible view. The findings given
by the learned trial court are found just and proper as
there is no error or perversity in the findings given by
the learned trial court, and the learned trial court has
properly appreciated the materials available on record.
14. 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 as the learned trial court has
rightly given the cogent and convincing reasons for
acquitting the present respondents - original accused.
15. In view of the above and for the reasons stated
above, present Criminal Appeal deserves to be dismissed
and is, accordingly, dismissed. Record and Proceedings be
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sent back forthwith to the concerned trial court. Bail and
bail bond, if any, stands cancelled. Surety also, if any
given, stands discharged.
16. In view of dismissal of Criminal Appeal No.752 of
1995, the Criminal Revision Application No.244 of 1995
is required to be dismissed and the same is dismissed,
accordingly.
(SANDEEP N. BHATT,J)
(J. C. DOSHI,J)
SLOCK BAROT
