Gujarat High Court
State Of Gujarat vs Ravikumar @ Ramaji Hirabhai Patel on 4 June, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 549 of 1999
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
RAVIKUMAR @ RAMAJI HIRABHAI PATEL
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Appearance:
MS. DIVYANGNA JHALA, APP for the Appellant(s) No. 1 - State
MR YATIN SONI(868) for the Opponent(s)/Respondent(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
and
HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 04/06/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)
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1. Feeling aggrieved and dissatisfied with the judgment
and order of acquittal dated 26.02.1999 passed by the
learned Addl. Sessions Judge, Rajkot in Sessions Case
No.13 of 1992, whereby the respondent herein - original
accused came to be acquitted for the offences under
Sections 498(A), 304(B) and 306 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 facts of the case as per the prosecution
are as such that on 10.09.1991, Pragnaben, the daughter
of complainant Savitaben Mohanbhai committed suicide
by jumping into the unused well situated in the
outskirts of Kuvadva village, due to physical and mental
torture by the accused. Subjecting physical and mental
torture, the accused has provoked her to commit suicide.
By doing so, the accused has committed punishable
offence under Section 306 of the I.P.C. within the
jurisdiction of this Court.
2.1. Further, marriage of the deceased Pragnaben was
solemnized with the accused before a period of one and
a half year. After marriage, she was living with the
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accused. The accused used to take money from her
salary when she was working as a technician in PHC at
Kuvadva village. He did not give her enough money for
expenses. When he was working as a teacher at Sinai
village in Kutch, he used to torture the deceased
physically and mentally by demanding ten to fifteen
thousand rupees for his transfer from Kutch to Rajkot
district. By doing so, the accused has committed offence
punishable under Section 498C of I.P.C. within the
jurisdiction of this Court.
2.2. Further, it is alleged against the accused that
before the date, time and place mentioned above, he
used to take money from the salary of deceased
Pragnaben. He did not even give her the amount for her
need and tortured her physically and mentally. In order
to get transfer from Kutch district to Rajkot district, the
accused had asked the deceased to bring ten to fifteen
thousand rupees from her parents. As her mother could
not give money, the deceased was physically and
mentally tortured. Due to such torture, she committed
suicide on 10.09.1991 by jumping into the unused well of
Kuvadva village as mentioned above. By doing so, the
accused has caused her death amounting to dowry death.
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By doing so the accused has committed an offence
punishable under Section 304B of I.P.C. within the
jurisdiction of this Court. With regard to the above-
mentioned, accused has been arrested for the offence
under Section 498C and 304B of I.P.C. registered with
Rajkot Taluka Police Station vide crime registration
number 331 of 1991. The complaint of this offence has
been given by Savitaben Mohanbhai, mother of
Pragnaben, from which the offence thereof has been
registered.
2.3. As per the facts of this complaint, marriage of the
deceased Pragnaben was solemnized with the accused
before a period of one and a half year. The deceased
Pragnaben had degree of B.Sc. Microbiology and she had
been working as Laboratory Technician before a period of
three years from the date of the incident. In this way,
she was working as Laboratory Technician before a
period of about one and a half year of her marriage and
she was posted at Village-Sanosara. However, as there
was no laboratory in that village, she was working as a
Technician in Primary Health Center, Kuvadva. She was
working there before her marriage and after marriage,
she was residing with her parents at Vankaner and she
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was commuting from Vankaner to Kuvadva. As the
deceased was pregnant, she had rented a house in
Village-Kuvadva so that she may not have to face much
difficulty and her mother-in-law Hariben Hirabhai was
also residing with her there. As the accused is working
in High School in Village-Sinai of Taluka-Anjar, District-
Kachchh, he resides there and he used to come to
Vankaner and Kuvadava thereafter on holidays. As per
the prosecution's case, when the accused used to come to
Kuvadva on holidays, he used to take the amount of
salary from the deceased and he did not even give her
the amount for her need. In the meantime, on the day
of Nagpanchmi i.e. before occurrence of the incident,
Pragnaben came to her parental house at Vankaner at
around 11:00 to 11:30 hours and informed her mother -
the complainant that she wants ornaments to enjoy the
festival of Satam-Antham. Thus, her mother gave her
ornaments containing gold chain of 2.5 Tola, bangles of
two Tola and set of Two and a half Tola. The deceased
also told her mother that as she wants to get her
husband i.e. the accused transferred from Kachchh
District to Rajkot District, she requires rupees ten to
fifteen thousand for the purpose. Thus, the complainant
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replied her that she cannot make arrangement of such
amount. You can take your ornaments. By saying so, the
complainant gave ornaments to her and after taking the
said ornaments, she left at about 4:00 hours in the
evening. Thereafter, the deceased and her mother-in-law
left from Kuvadva to Village-Hadiana, District-Jamnagar
to enjoy Satam Antham. Thereafter, on 11.09.1991,
Babubhai, landlord of the house where the deceased was
residing, came to Vankaner in the morning and told the
complainant that Pragnaben has gone somewhere at
about 1:00 hours in the morning by stating of going to
toilet and she has not been traced till date. This fact
was informed to the complainant at about 9:30 hours in
the morning. Then, the complainant and her husband
namely Mohanbhai Arjanbhai came from Vankaner to
Kuvadva at about 10:45 hours and inquired about their
daughter Pragnaben in Primary Health Center at
Kuvadva and thereafter, dead body of the deceased
Pragnaben was found from unused well located in the
outskirts of the village. Then, the complainant gave
complaint to Police Station.
3. After registering the complaint of the complainant,
Police Inspector - Shri B.R. Thakor has carried out the
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investigation of this crime and after completion of
necessary investigation, charge-sheet has been filed before
the Court of Judicial Magistrate First Class, Rajkot. The
dead body of the deceased was found before the offence
was registered and on the basis it, accidental death case
No.74 of 1991 was registered under Section 174 of the
Penal Code and the investigation was carried out. The
Inquest Panchnama in respect of the accidental death of
the deceased Nilansh was drawn and the Panchama of
the place of incident was drawn. Both the Panchnamas
have been kept with the investigation papers in this
offence. The statements of the witnesses have been
recorded after the offence was registered. As the
examination of dead body was conducted and note to this
effect was found, the same have been enclosed with the
investigation papers by the Investigating Officer.
4. The brother of the deceased Rajnikant Mohanbhai
Bhimani had filed a private complaint against the
accused and his mother Hariben Hirabhai vide Inquiry
Case No.643 of 1993 in the Court of Judicial Magistrate
First Class, Rajkot under Sections 304B, 498A and 114
of the Indian Penal Code. The Judicial Magistrate First
Class had directed the Investigating Officer in the Crime
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Register No.331 of 1991 to submit report. After receipt of
the report, as the charge sheet was filed against the
present accused in the Court, order was passed under
Section 210(3) to conduct the further proceedings as per
chapter 15 of the Criminal Procedure Code as to whether
offence is made out against Hariben Hirabhai or not.
After the deposition of the witnesses were recorded, it
was held that no offence is made out against Hariben
Hirabhai and it was order to quash the complaint under
Section 203 of the Criminal Procedure Code. As the case
against the present accused has been committed to the
Sessions Court, it was held that nothing remains to be
done in this regard. As no appeal or revision has been
filed against the order, the said order stands confirmed.
However, as the case against the accused has been
committed to Sessions Court, the case is presently sub-
judice.
4.1. After providing the papers of police investigation to
the accused, as it appeared that the case against the
accused falls under the jurisdiction of Sessions Court, the
learned Judicial Magistrate First Class, Rajkot committed
the case to the Sessions Court. Thereafter, the said case
has been sent to this Court to conduct further
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proceedings and to dispose of accordingly and hence, the
case has been presented before this Court.
4.2. As the aforesaid charge sheet below Exhibit-1
was read over to the accused, the accused did not plead
guilty and requested to be tried and hence, the trial was
conducted and the evidences adduced by the prosecution
have been recorded. After the evidence of the prosecution
were completed, the accused was examined under Section
313 of the Criminal Procedure Code and he was given
opportunity to give explanation with regard evidences
against him/her. The accused has stated that the
evidence is false. Moreover, the accused has refused to
give deposition on oath and produce evidence for his
defence. The accused has further stated that a false case
has been filed against him and he is innocent.
Thereafter, detailed arguments of both the parties were
heard.
5. In order to bring home charge, the prosecution has
examined 7 witnesses and also produced various
documentary evidence before the learned trial court, more
particularly described in para 6 of the impugned
judgment and order.
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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 respondent - accused so as to obtain
explanation/answer as provided under Section 313 of the
Code. In the further statement, the respondent - accused
denied all incriminating circumstances appearing against
him as false and further stated that he is innocent and
false case has been filed against him.
7. We have heard learned APP Ms. Divyangna Jhala
for the appellant - State and Mr. Yatin Soni, learned
advocate for the respondent - accused, and minutely
examined oral and documentary evidence adduced before
the learned trial court.
8.1. Learned APP Ms. Divyangna Jhala for the appellant
- State, has submitted that the learned trial court erred
in acquitting the respondent accused. She has drawn the
attention of this Court towards the charges framed at
Exh. 1 by the Sessions Court on 29.12.1998, whereby it
is evident that the charges are framed under Sections
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306, 498A, and, alternatively, under Section 304B of the
I.P.C. Furthermore, she has submitted that following the
framing of the charges, the prosecution has examined
several witnesses at Exh. 12, 20, 21, 24, 28, 31, and 32,
and produced several documentary evidences at Exh. 22,
23, 25, 29, 30, 33, and 34, as well as Exh. 13 to 19,
which are letters produced on behalf of the defence.
8.2. Furthermore, she has submitted that the deceased,
Pragnaben, jumped into a well and her body was
recovered from a well situated very close to the
residential premises. She has submitted that there is
ample material available on record, which indicates that
the accused has instigated the deceased through constant
physical and mental torture, leading her to commit
suicide. Therefore, offence under Section 306 read with
Section 498A of the I.P.C. is made out. She has also
highlighted that the deceased, Pragnaben, holds B.Sc.
degree in Microbiology and worked as a Laboratory
Technician before her marriage. Initially, she lived with
her parents in Vankaner, but after her marriage and
pregnancy, she moved to a rented premises in Kuvadva
village, where she lived with her mother-in-law, Hariben
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Hirabhai. She has also submitted that as per the case of
the prosecution, the accused would visit Kuvadva village
during holidays, and take all the deceased's money, and
also torture her.
8.3. Furthermore, she has submitted that the learned
trial court, without properly considering the material on
record, has wrongly concluded that the prosecution has
failed to establish the case of mental and physical
torture and failed to establish that offence under Section
306 of the I.P.C. is made out. Alternatively, the trial
court ought to have considered that the offence also falls
under the provisions of Section 304B, which was not
properly considered, leading to a gross error of law.
Therefore, she has submitted that the present appeal has
been preferred by the appellant - State, on the grounds
that the trial court has not properly considered the
materials, more particularly, considering that the fact
that the deceased, Pragnaben, was married to the
respondent - accused just before one and a half years
and, therefore, looking to the brevity of the marriage
period, the learned Judge ought to have concluded that
she was subjected to cruelty.
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8.4. Furthermore, she has submitted that the learned
trial court has not properly considered the evidence of
Dr. Jyantilal Ratilal Rapariya at Exh. 28 and the Post-
mortem Note at Exh. 29, and has submitted that as per
report of this medical officer and Post-mortem Report, it
is crystal clear that she has committed suicide.
Furthermore, she has submitted that the trail court has
not properly considered the documentary evidence, which
is exhibited at Exh.13 to 19. Additionally, she has
submitted that the learned trial court has not properly
considered the deposition of the complainant, Savitaben
Mohanbhai, at Exh. 24, as well as the depositions of
Rajnikant Mohanlal at Exh. 12 and Mohanbhai Arjanbhai
at Exh. 26, who are the deceased's mother, brother, and
father, respectively, and who have supported the
prosecution's case.
8.5. Moreover, she has submitted that the trial court
has not taken into account that the respondent -
accused demanded an amount of Rs. 10,000/- to Rs.
15,000/- for getting his transfer in service. Therefore, she
has concluded that the judgment and order of acquittal
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are based on erroneous findings and is required to be
interfered with, by quashing and setting aside, and
further requested to pass appropriate order of conviction.
9. Per contra, learned advocate Mr. Yatin Soni for the
respondent - original accused has submitted that the
impugned judgment and order of acquittal passed by the
learned trial court is just and proper, and is in
accordance with well settle proposition of law, and
nothing warrants interference by this Court as no case is
made out to exercise the powers under Section 378 of
the Code and, therefore, he has prayed to dismiss the
present appeal.
10. It is a cardinal principle of criminal jurisprudence
that in an acquittal appeal if other view is possible,
then also, the appellate Court cannot substitute its own
view by reversing the acquittal into conviction, unless the
findings of the learned 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, learned APP for the appellant has not
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been able to point out to us as to how the findings
recorded by the learned trial court are perverse, contrary
to material on record, palpably wrong, manifestly
erroneous or demonstrably unsustainable.
11.1. We have considered the submissions made at
the bar and perused the materials available on record.
Looking to the case of the complainant, it transpires
that, there was a marriage span of one and a half years
between the accused - husband and deceased - wife,
during which the deceased was residing separately from
her husband in Kuvadva with her mother-in-law. The
accused - husband, used to visit Kuvadva during
holidays. According to the prosecution, the accused used
to demand money and torture the deceased physically
and mentally. It is true that, in cases of short marriage
spans, if such untoward incidents occur, the Court must
scrutinize the facts very carefully.
11.2. In this context, we have re-appreciated the
evidence of various persons, including the mother, father,
and brother of the deceased, who deposed before the
learned trial court. While considering the deposition of
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Rajnikant Mohanlal at Exh. 12 (the brother of the
deceased) with the deposition of the complainant,
Savitaben Mohanbhai, at Exh. 24 (the mother of the
deceased), it transpires that the learned trial court
examined these depositions and scrutinized its content,
and come to the conclusion that they did not have any
personal knowledge of the events of incident. According
to complainant - Savitaben Mohanbhai, she was informed
by the landlord - Babubhai, that the deceased went to
attend nature's call at night and did not return.
Consequently, they reached Kuvadva village from
Vankaner village to inquire about their daughter's
whereabouts. After searching for her daughter all day,
they discovered that Pragnaben's (the complainant's
daughter) body was recovered from a well at 6:00 in the
evening. This version is also reiterated by Mohanbhai
Arjanbhai (father of the deceased), who deposed at Exh.
26.
11.3. Furthermore, the landlord of the deceased,
Babubhai Haribhai, was examined at Exh. 20. As per his
deposition, it transpires that the deceased's mother-in-law,
Hariben Hirabhai, informed him that Pragnaben had
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gone for nature's call at night and did not return. Later,
the body was found in the well. Panchnama was drawn,
and Panch witness Mahendrabhai Samantbhia Raval was
examined at Exh. 21, who has supported the inquest
Panchnama drawn at Exh. 22 and the Panchnama of the
place of incident at Exh. 23. Dr. Jyantilal Ratilal
Rapariya was examined at Exh. 28 and produced the
Post-mortem Note at Exh. 29. Investigating Officer -
Dinkarrai Ranjitrai Thakor was examined at Exh. 32 and
he explained that how he has made investigation.
11.4. After perusing the material on record, this
Court has come to the conclusion that from the
deposition of the witnesses, there is no doubt that the
death occurred due to drowning, as the deceased fell into
the well, and the body was recovered from it. Medical
and other evidence support the fact that the deceased
committed suicide.
11.5. Now, considering the circumstances under
which the deceased committed suicide, there is no
material produced by the prosecution to indicate that the
accused demanded Rs. 10,000/- to Rs. 15,000/- from the
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deceased for transfer purposes or tortured her regarding
ornaments. The witnesses' depositions reveal that the
deceased's ornaments were lying with her parents at her
parental house. In view of the above-stated, though the
marriage span is less than seven years, the presumption
of Section 113A of the Indian Evidence Act, 1872 is
required to be considered in such cases. But considering
the fact that there is no evidence available on the record
of the present case, the prosecution has miserably failed
to prove any charge against the harassment or dowry by
producing cogent and convincing evidence. On the
contrary, the letter written by the deceased to the in-
laws indicate that the deceased was happy with
matrimonial side, and to that extent, the defence has
discharged its burden on that aspect.
11.6. Furthermore, the defence has produced
documentary evidence at Exh. 13 to 19, consisting of
letters written by the deceased to the father and brother
of the accused on 25.06.1990, 26.07.1990, 03.09.1990, and
20.09.1990, about a year before the incident. These
letters clearly show the deceased's love and affection
towards the accused. Notably, nowhere does she mention
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any ill-treatment by her husband - accused.
11.7. Considering the material available on record,
merely because the marriage span was short and the
deceased committed suicide is not sufficient to hold the
accused guilty. There is no satisfactory material on
record, which clearly implicate the accused for offences
under Sections 306, 498A read with Sections 107 and
304B of the Indian Penal Code, as under:
"Section 306 in The Indian Penal Code, 1860:-
306. Abetment of suicide.--
If any person commits suicide, whoever abets the
commission of such suicide, shall be punished with
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.
Section 498A in The Indian Penal Code, 1860:-
498A. Husband or relative of husband of a woman
subjecting her to cruelty.--
Whoever, being the husband or the relative of the husband
of a woman, subjects such woman to cruelty shall be
punished with imprisonment for a term which may extend
to three years and shall also be liable to fine.
Explanation.-- For the purpose of this section, "cruelty"
means--
(a) any wilful conduct which is of such a nature as is
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likely to drive the woman to commit suicide or to cause
grave injury or danger to life, limb or health (whether
mental or physical) of the woman; or
(b) harassment of the woman where such harassment is
with a view to coercing her or any person related to her to
meet any unlawful demand for any property or valuable
security or is on account of failure by her or any person
related to her to meet such demand.
Section 107 in The Indian Penal Code, 1860:-
107. Abetment of a thing.--
A person abets the doing of a thing, who--
(First)
-- Instigates any person to do that thing; or
(Secondly)
-- Engages with one or more other person or persons in
any conspiracy for the doing of that thing, if an act or
illegal omission takes place in pursuance of that conspiracy,
and in order to the doing of that thing; or
(Thirdly)
-- Intentionally aids, by any act or illegal omission, the
doing of that thing.
Explanation 1.-- A person who, by wilful misrepresentation,
or by wilful concealment of a material fact which he is
bound to disclose, voluntarily causes or procures, or
attempts to cause or procure, a thing to be done, is said to
instigate the doing of that thing.
Illustration
A, a public officer, is authorized by a warrant from a Court
of Justice to apprehend Z. B, knowing that fact and also
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that C is not Z, wilfully represents to A that C is Z, and
thereby intentionally causes A to apprehend C. Here B
abets by instigation the apprehension of C.
Explanation 2.-- Whoever, either prior to or at the time of
the commission of an act, does anything in order to
facilitate the commission of that act, and thereby facilitate
the commission thereof, is said to aid the doing of that act.
Section 304B in The Indian Penal Code, 1860:-
304B. Dowry death.--
(1) Where the death of a woman is caused by any burns or
bodily injury or occurs otherwise than under normal
circumstances within seven years of her marriage and it is
shown that soon before her death she was subjected to
cruelty or harassment by her husband or any relative of
her husband for, or in connection with, any demand for
dowry, such death shall be called "dowry death", and such
husband or relative shall be deemed to have caused her
death.
Explanation.-- For the purpose of this sub-section, "dowry"
shall have the same meaning as in section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with
imprisonment for a term which shall not be less than seven
years but which may extend to imprisonment for life."
11.8. It is also relevant to refer the provisions of
Section 378 of the Code, as under:
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"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
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
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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
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)."
11.9. In the case of Ram Kumar v. State of
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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."
11.10. 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
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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.
11.11. 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-
(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."
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11.12. 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.
11.13. It is also relevant to note that the Hon'ble
Apex Court has time and again considered the aspect of
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 relevant observations are as under:
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"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 was 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 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.
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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 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:
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"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)"....
....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.
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.
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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 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."
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(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."
11.14. In view of the above decision and in totality,
it transpires that the prosecution has failed to prove the
offences punishable as per the charges against the
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accused. The reasoning given by the learned trial court
is found to be possible and plausible one. We found that
the findings given by the learned trial court are just and
proper, as there is no error or perversity in the
findings of the learned trial court. The learned trial
court has properly appreciated the materials available on
record. On the contrary, the defence has produced
satisfactory material, which prima facie indicates that
there were healthy relations between the deceased - wife
and the accused - husband, and no complaint has ever
been made by the deceased against the accused, even
also, from the documentary evidence, no complaint
against accused - husband is found. Therefore,
considering the provisions of Section 107 of the I.P.C.,
the presumption of abetment cannot be applied in the
facts of the present case. Additionally, the defence has
prima facie discharged its burden to establish its
innocence. Therefore, we are of the opinion that the
learned trial court has not committed any error.
11.15. Considering the aforesaid facts and
circumstances of the case and law laid down by the
Hon'ble Supreme Court, while considering the scope of
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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.
12. In view of the above and for the reasons stated
above, present Criminal Appeal deserves to be dismissed
and is, accordingly, dismissed.
13. Accordingly, the impugned judgment and order of
acquittal dated 26.02.1999 passed by the learned Addl.
Sessions Judge, Rajkot in Sessions Case No.13 of 1992 is
confirmed.
14 Record and Proceedings be sent back forthwith to
the concerned trial court. Bail and bail bond, if any,
stands cancelled. Surety also, if any given, stands
discharged.
(SANDEEP N. BHATT,J)
(J. C. DOSHI,J)
DIWAKAR SHUKLA
