Gujarat High Court

State Of Gujarat vs Dayaldas Vikramdas Salvani on 6 June, 2024

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     R/CR.A/1013/1997                               JUDGMENT DATED: 06/06/2024

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                    R/CRIMINAL APPEAL NO. 1013 of 1997

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
                        DAYALDAS VIKRAMDAS SALVANI & ORS.

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Appearance:
MR DIVYANGNA JHALA for the Appellant(s) No. 1
HL PATEL ADVOCATES (2034) for the Opponent(s)/Respondent(s) No. 1,2,3
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1,2,3
==========================================================
  CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
          and
          HONOURABLE MR. JUSTICE J. C. DOSHI
                       Date : 06/06/2024
                     ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)

1. Feeling aggrieved and dissatisfied with the judgment

and order of acquittal dated 31.07.1997 passed by the

learned Sessions Judge, Panchmahal, At - Godhara in

Sessions Case No.222 of 1993, whereby the respondents

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herein - original accused came to be acquitted for the

offences under Sections 332, 333, 186, 504, 426, 114 of

Indian Penal Code and under Section 120 of the Bombay

Police Act, 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 this case are as under.

The Original Complainant - PSI Mr. M. I. Shaikh

was performing his duty as Traffic PSI near Ambika

Cross road in Godhra on 23-7-93. On the day before, he

had issued a Memo for a Mini Luxury Bus No. GJ-17-T-

321 near Godhra Town Police Chowki No. 8. At the time

of the incident i.e. on 23-7-93 at about 10-15 hour, when he was preparing a Memo for Auto Rickshaw No. GJ-17-

T-1556, accused Vasu Sindhi and Mukesh Sindhi arrived

over there with a copy of the Memo, which he had

issued on the previous day and started abusing him. As

the altercation hiked, the complainant gave vardhi from

his walkie-taklie set to send Motor Mobile No.1

immediately at Ambika Crossroad. Therefore, both the

accused persons got into the rickshaw parked over there

and while going, they stated that as long as RTO

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Inspector Mr. Shah is posted at Godhra, his RTO Memo

will not be effective. You may issue Memo; we will

manage it. After saying this, they went away in

rickshaw. Thus, as both the accused persons had caused

hindrance in government duty, he immediately came to

the Police Chowki No. 8 for lodging complaint. At that

time, Police Head Constable Jivabhai Jalubhai, Police

Constable Vinodchandra Chunilal, Telephone Duty Police

Constable Arjunbhai Sardarbhai etc. were present at

Chowki No. 8. In the meantime, accused persons

Dayaldas Trikamdas, Vasu Sindhi and Mukesh Sindhi

arrived at Police Chowki No. 8 and soon after arrival,

they stated that 'Shaikh, why are you hiding inside and

thereafter, all three of them started hurling filthy abuses and all three of them assaulted PSI Mr. Shaikh with

fists and blows. As the accused Dayaldas raised the

wooden ruler lying on the table to hit PSI Mr. Shaikh,

Head Constable Jivabhai and Police Constable

Vinodchandra present in the Chowki intervened to save.

At that time, accused Dayaldas hit the ruler on the left

eye part to Head Constable Jivabhai and hence, bleeding

started. The watch of PSI Mr. Shaikh got broken in this

scuffle and it fell on the ground. Moreover, as Telephone

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Duty Police Constable Arjunbhai informed the Town

Police Station through wireless in the meantime, the I/c.

Police Inspector Mr. Navle arrived with Eagle Mobile

Van. During this period, Mukesh and Vasu had escaped

and accused Dayaldas was captured.

3. In pursuance of the complaint lodged by the

complainant with Godhara Town Police Station for the

offence under Sections 332, 333, 186, 504, 426, 114 of

Indian Penal Code and under Section 120 of the Bombay

Police Act, the investigating agency recorded statements

of the witnesses, drawn panchnama of scene of offence,

discovery for the purpose of proving the offence. After

having found sufficient material against the respondents

- accused persons, charge-sheet came to be filed in the

Court of learned the JMFC, Godhara. As said Court

lacks jurisdiction to try the offence, it committed the

case to the Sessions Court, Godhara as provided under

Section 209 of the Code.

4. Upon committal of the case to the Sessions Court,

Godhara, the learned Sessions Judge framed charge at

Exh.2 against the respondents accused for the aforesaid

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offences. The respondents accused pleaded not guilty and

claimed to be tried.

5. In order to bring home charge, the prosecution has

examined 6 witnesses and also produced various

documentary evidences before the learned trial Court,

more particularly described in para 8 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.

7. We have heard learned APP Ms. Divyangna Jhala

for the appellant - State and learned advocate appearing

for H.L.Patel Associates for the respondents and minutely

examined oral and documentary evidence adduced before

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the learned trial Court.

8.1. Learned APP Ms. Divyangna Jhala for the appellant

- State has submitted that prima-facie, the learned trial

Court has committed error in acquitting the accused

persons from the charges punishable under Sections 332,

333, 186, 504, 426, 114 of Indian Penal Code and under

Section 120 of the Bombay Police Act. She has further

submitted that from the records, it transpires that there

is sufficient evidence available on the record by way of

documentary evidences as well as oral depositions, which

clearly support the case of the prosecution and the case

of the prosecution is proved beyond reasonable doubt.

She has further submitted that the learned trial Court has recorded the order of acquittal, which is ex-facie, bad

in law and against the provisions of law and also by

ignoring the evidences on record of the case and

therefore, requires interference by this Court and also

requires to be quashed and set-aside.

8.2. She has further submitted that the learned trial

Court has failed to appreciate that the complainant Shri

Makbul IftegarAhmed Shaikh was working as a Police

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Sub Inspector at Godhara Traffic Branch at the relevant

point of time and the respondents accused have given

kicks and fists blows to the complainant during his office

hours and the respondent accused no.1 has given blow of

wooden scale and the injury is caused on left eye of the

Head Constable Jeevabhai Jalubhai. This whole aspect

clearly indicates that the respondents accused have acted

in high handed manner and also have give abuses to the

complainant and therefore, they were helping each other

in committing the offence punishable under Sections 332,

333, 186, 504, 426, 114 of Indian Penal Code and under

Section 120 of the Bombay Police Act.

8.3. She has further submitted that the learned trial Court has failed to appreciate that the respondents

accused have committed the offence punishable under

Sections 332, 333, 186, 504, 426, 114 of Indian Penal

Code and under Section 120 of the Bombay Police Act

by entering in Police Chowky No.8 and created

disturbance in Government work. She has further

submitted that the deposition of the complainant, which

is also supported by the depositions of the Medical

Officers - Dr.N.P.Patel and Dr.P.R.Bhatiya, was not

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properly appreciated by the learned trial Court. She has

further submitted that the Injury Certificates which are

issued regarding injuries caused to Mr.Makbul

IftegarAhmed Shaikh and Head Constable Mr.Jeevabhai

Jalubhai by the concerned Medical Officer, were also not

properly taken into consideration by the learned trial

Court.

8.4. She has further submitted that the learned trial

Court ought to have believed the evidence of the injured

witness of the prosecution i.e. Mr.Jeevabhai Jalubhai.

She has further submitted that the learned trial Court

has not properly appreciated the fact that the

complainant is the public servant serving in the Police Department and he has no reason to file such false

complaint against the respondents accused and therefore,

she submitted by taking this Court to the various

depositions as well as the documentary evidences

available on record and also referring to the findings of

the learned trial Court that the trial Court has

committed error in not properly appreciating the evidence

available on record and more particularly, the prosecution

has proved its case beyond reasonable doubt and

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therefore, she prays that the present appeal requires

interference by exercising the powers under Section 378

of the Criminal Procedure Code, 1973 against the

judgment and order of acquittal passed by the learned

Sessions Judge, Godhara in Sessions Case No.222 of

1993 on 31.07.1997 and by passing the appropriate order

of conviction.

9. Per contra, learned advocate appearing for H.L.Patel Associates for the respondents has supported the

judgment and order of acquittal passed by the learned

trial Court and has submitted that the learned trial

Court has not committed any error and no perversity or

illegality is found from the judgment of acquittal passed by the learned trial Court. He has further submitted

that the view taken in the impugned judgment by the

learned trail Court is possible and plausible and

therefore, no interference is called for against the

judgment of acquittal. He has further submitted that the

complainant being a Police Officer has tried to abuse

the process of law by filing such false and frivolous

complaint and the learned trial Court has rightly come

to conclusion that such complaint itself is doubtful and

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therefore, the learned trial Court has also not believed

the story put up by the prosecution and has rightly

acquitted the accused persons from the alleged offence.

He has further 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 settled

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

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

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erroneous or demonstrably unsustainable.

11.1. We have considered the submissions made at

the bar and perused the materials available on the

record. We have considered rival submissions made at

the bar. We have also considered the fact that the

complainant is one Shri Makbul IftegarAhmed Shaikh

working as a Police Sub Inspector at Godhara Traffic

Branch at the relevant point of time. As per the say of

the complainant, the incident has taken place as he was

giving a memo to the accused persons when they parked

the auto rickshaw, which created nuisance to the traffic

and at that point of time, the accused persons started

abusing the complainant and memo was given to the accused persons on 22/07/1993. The said incident took

place due to issuance of memo to one Mini Luxury Bus

on 22/07/1993 and the accused persons were also

threatening the complainant that since the R.T.O.

Inspector who is serving at Godhara, is known to them,

nothing can happen to the accused persons. Thereafter,

they went in Auto rickshaw and as they have committed

hindrance in discharging duty as Police Sub Inspector,

the complainant came to the Police Chawky No.8 to

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lodge the complaint. At that time, the accused persons

namely Dayaldas Trikamdas, Vasu Sindhi and Mukesh

Sindhi have come together in the Police Chawky and

have started abusing the complainant and thereafter,

they have started beating the complainant by giving fists

and kicks blows. At that time, Constable Mr.Ganpatsinh,

Home Guard Mr.Rajendrasinh and other persons tried to

intervene. At that point of time, the accused Dayaldas

has given the blow of wooden scale lying on the table

and due to that blow, one Head Constable Jeevabhai

Janubhai received injury in his eye and as per the say

of the complainant, the chain of watch was also broken

and thereafter, vardhy was given to the Town Police

Station and thereafter, the offence was registered against the accused persons under Sections 332, 333, 186, 504,

426, 114 of Indian Penal Code and under Section 120 of

the Bombay Police Act. Thereafter, the accused persons

were arrested and thereafter, the charge was framed by

the learned Sessions Court vide Exh.2.

11.2. Considering the charge and considering the fact

that thereafter the complainant himself was examined by

the prosecution at Exh.27 and as per the say of the

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complainant, he has stated the story that when he was

on duty, the incident has taken place. He is always

having revolver with him as being the Police Sub

Inspector. Normally, his revolver is remained loaded, the

incident which is allegedly taken place initially on the

road and thereafter, at the Police Chawky whereby the

allegation is made that the accused persons have beaten

the complainant, who is the Police Sub Inspector. It

reveals from the deposition of the complainant that the

complainant has neither resisted such assault nor tried

to use the revolver in his defence nor tried to save

himself. Such story that the incident has allegedly taken

place in presence of other policemen and three persons

coming from outside are beating the Police Sub Inspector, is totally non convincing and prima-facie found got up. It

also reveals from the material available on the record

that all the witnesses, who are examined by the

prosecution, are from the Police Department and the

doctors who are examined in support of the say of the

Police are not qualified Ophthalmologist, who have given

certificate. Dr.Prabhakar, who is examined at Exh.55 has

given the Medical Certificate by indicating that he is

working as a Medical Officer and he is not qualified

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Ophthalmologist even then on the very first examination,

he has given the certificate that the left eye of

Jeevabhai Jalubhai is having injury and is visually 30%

handicapped at present. It is clearly established from the

Examination-In-Chief and Cross Examination that he is

not an expert in giving such opinion though he is the

Medical Officer and he is not having any qualification

regarding Ophthalmology. Another Dr.Naranbhai

Kunjabhai Patel was also examined at Exh.53. He has

admitted that there is a correction in the date of the

certificate and he has also specifically submitted that

there is only complaint regarding blows given on

forehead, face and on stomach by the complainant Shri

Makbul IftegarAhmed Shaikh but there is no as such external injury found and considering the fact that there

is a correction in the date of the certificate, nothing

much comes out from the deposition of the witnesses in

support of the case of the prosecution. The prosecution

has also examined the witnesses at Exhibit 49 Shri

Ganpatsinh Rathod, who was serving as a Police

Constable in Traffic Branch. He is also trying to support

the version given by the complainant Shri Makbul

IftegarAhmed Shaikh and there is also the deposition of

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Head Constable Shri Jeevabhai Jalubhai at Exhibit 51,

who is allegedly having the injury in the left eye in the

said incident. In his cross examination, he has narrated

totally different story that he became unconscious when

such incident took place, therefore he was not as such

giving proper version even regarding receiving the blow

of the wooden scale. He has not also revealed such fact

in certain terms as to which part of the wooden scale

was hit in the eye. Considering his deposition also, the

case of the prosecution is not supported beyond

reasonable doubt. The trial Court has discussed all these

aspects in detail and more particularly para 18 onwards

in the impugned judgment, the trail Court has found

that the incident has taken place in two parts, in one part, the incident has taken place on the road and in

another part, the incident has taken place in the Police

Chawky. It is also reflected from the material available

on the record that on the said day, in fact the Police

Sub Inspector Shri M.I.Shaikh has called Dayaldas at

the Police Chawky No.8 to settle the dispute pertains to

the criminal case, which is filed by Dayaldas and

actually, it is the case of Dayaldas that the P.S.I. has

started abusing him and thereafter giving fist and kick

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blows and when the P.S.I. was trying to beat him with

the wooden scale, he tried to save himself and therefore,

he has stretched his hands and at that point of time,

one piece of wooden scale was broken from the scale and

has hit on the eye of Jeevabhai. It also transpires from

the medical papers available on the record that Dayaldas

has also received the injury in his fingers of the hand.

The defence which is put up by Dayaldas is possible one

and the learned trial Court has also considered this

aspect in its judgment. It is also found that the incident

has taken place in presence of many Policemen and the

complainant has filed the complaint that he was beaten

by the accused persons. The Police Sub Inspector is

always having the revolver with him and it is totally unbelievable story that three person could come in the

Police Chawky and thereafter, gave fist and kick blows

to such Police persons and more particularly, the Police

Sub Inspector having revolver with him is not trying to

save himself and not giving any counter attack. From

the material available on the record, it transpires that

some of the papers which are produced at Exh.20 are

prayed to be de-exhibited under Section 162 of the

Indian Evidence Act and the said application is filed

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vide Exh.31 and the learned Sessions Court has rejected

the said application by order dated 22.02.1996. The

documents pertains to the cases, which are registered by

the Police Sub Inspector, Traffic Branch, Godhara are

also available on the record for the particular period

whereby the complainant Shri M.I.Shaikh was serving as

a Police Sub Inspector at the relevant point of time and

the details about the cases registered by him and the

vehicles detained by the Police Sub Inspector are also

available on the record and the data showing the details

about the vehicles of Hindu persons and Muslim persons

are also produced pursuant to the complaint received by

the Deputy Superintendent of Police about the improper

behaviour of the complainant. That document also indicates about the background of the incident and

conduct of the present complainant. In any case, there

are many inconsistencies and contradictions found in the

depositions of the complainant and other witnesses even

the medical evidence is not supporting the case put up

by the prosecution.

11.3. We are of the opinion that this case is classic

case whereby the Police Officers are abusing its power.

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If the citizens are not acting pursuant to their improper

demand or if citizens are resisting such demands, then

they are taking shelter by creating such improbable

stories with the help of the subordinate officers. Even

assuming that such incident has taken place, then also

it seems that it is probable that the complainant himself

being the Police Sub Inspector has called the accused

persons as rightly put up the defence by the accused

persons that they were called at the Police Chawky and

they have been beaten by the Police Sub Inspector

though they were called for some settlement of the

dispute of the criminal case.

11.4. This is very alarming situation whereby some checks are required to be made and check and balance

should be there on the powers when such erring officers

are exercising their powers in improper and illegal

manner with a view to harass any citizen.

11.5. It is fruitful to refer the provisions of Sections

332, 333, 186, 504, 426, 114 of Indian Penal Code and

under Section 120 of the Bombay Police Act, as under :

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"Section 332 in the Indian Penal Code, 1860:-

332. Voluntarily causing hurt to deter public servant from his duty.--

Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

"Section 333 in the Indian Penal Code, 1860:-

333. When accused appears to have been of sound mind.

- When the accused appears to be of sound mind at the time of inquiry or trial and the Magistrate is satisfied from the evidence given before him that there is reason to believe that the accused committed an act, which, if he had been of sound mind, would have been an offence, and that he was, at the time when the act was committed, by reason of unsoundness of mind, incapable of knowing the nature of the act or that it was wrong or contrary to law, the Magistrate shall proceed with the case, and, if the accused ought to be tried by the Court of Session, commit him for trial before the Court of Session.

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"Section 186 in the Indian Penal Code, 1860:-

186. Obstructing public servant in discharge of public functions.--

Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

"Section 504 in the Indian Penal Code, 1860:-

504. Intentional insult with intent to provoke breach of the peace.

Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

"Section 426 in the Indian Penal Code, 1860:-

426. Punishment for mischief.--

Whoever commits mischief shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.

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"Section 114 in the Indian Penal Code, 1860:-

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.

"Section 120 of the Bombay Police Act :-

120 Wilful trespass - Whoever without satisfactory excuse wilfully enters or remains in or upon any dwelling house or premises or any land or ground attached thereto, or on any grounds, building, monument or structure belonging to Government or appropriated to public purposes, or on any boat or vessel, shall, on conviction, whether he causes any actual damage or not, be punished with fine which may extend to [five thousand rupees].

11.6. 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

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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 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

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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)."

11.7. 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

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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."

11.8. 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

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belief that if it had been the trial court, it might have

taken a different view.

11.9. 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."

11.10. 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

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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.

11.11. 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 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

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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.

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

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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:

"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

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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) 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

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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. 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

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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."

(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:

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(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.

11.11. 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.

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11.13. Considering the aforesaid facts and

circumstances of the case and law laid down by the