Gujarat High Court
State Of Gujarat vs Keshvchaudhari Ramachaudhari Brahman on 7 June, 2024
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R/CR.A/820/1999 JUDGMENT DATED: 07/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 820 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
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
KESHVCHAUDHARI RAMACHAUDHARI BRAHMAN
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Appearance:
MS DIVYANGANA JHALA, APP for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1
MADANSINGH O BAROD(3128) 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 : 07/06/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE J. C. DOSHI)
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1. Feeling aggrieved and dissatisfied with the judgment
and order of acquittal dated 30.6.1999 passed by the learned
Addl. Sessions Judge, Bharuch in Sessions Case No.170 of
1997, whereby the respondent accused came to be acquitted
for the offences under section 302, 323 and 114 of Indian
Penal Code r/w section 135 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. Brief facts of the case are that the complainant Ramsing
Thakordin Yadav lodged his complaint on 11-5-1997, wherein
he stated that he is doing driving work and also business of
Labour Contractor. He has a friend at Ragujali and his name
is Ramfer Uttam Yadav, who belongs to U.P. As they are
friends, he moves around with him. At about half past four
o'clock in the evening on 11-5-97, the complainant and
Ramfer left to roam about Panoli GIDC and Ravindra Yadav
and Hanuman Ramlakhan Yadav met them over there. At that
time, Ramfer told them that Mukesh Trilokilal Shrivastav,
residing at P. C. Textile, had made Ramfer to make worthless
expenditure of Rs. 3000/- in a marriage of one relative of
Ramfer. Let us persuade him to give back the money. As he
stated this, all four of them went to P. C. Company. At about
quarter past five o'clock in the evening, Kamleshsing
Chhotaksing Rajput, Buvasinh Rajput - whose father's name is
not known to him, Mukesh Trilokilal Shrivastav and Keshav
Chudhari @ Rama Chaudhari, all of them were present in the
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room of P. C. Textile Company. At that time, Ramfer told to
Keshav Chaudhari @ Rama Chaudhari that you and your other
persons have got him to make worthless expenses of three
thousand rupees in the marriage of my relative and that those
monies should be returned. As such thing was stated, Keshav
Chaudhari and other persons with him got provoked. Hence,
altercation took place among them and they started using
abusive words. At that time, Keshav Chaudhari was armed
with iron Tommy. Mukesh Trilokilal was armed with a knife
and Kamleshsinh Chhotak was armed with thick iron plank
and Buvasinh Rajput was armed with a rampuri knife. They
rushed immediately and abused Ramfer. Keshav Chaudhari
inflicted two to three blows on the head using the iron Tommy
he was armed with and one blow was inflicted on leg.
Kamleshsing Rajput inflicted blow of the plank on the face. As
Mukesh Trilokilal tried to inflict blow to Ramfer with the knife
he was armed with, Ramfer caught hold of it. Therefore,
Ramfer sustained knife injury on palm. At that time, Buvasing
Rajput inflicted a slap on the face of Ramfer using the rampuri
knife he was armed with. When the complainant intervened to
rescue, Keshav Rama Chaudhari inflicted two to three blows
on the back of the complainant using the Tommy he was
armed with. At that time, Ravindra and Hanuman Ramlakhan
Yadav intervened to rescue him. Thereafter, Keshav, Mukesh,
Kamleshsing and Buvasinh threw their weapons at the spot
and went away. When the complainant checked, Ramfer had
died. Thereafter, the complainant called his relative who was
staying at Dayavan Hotel and went to lodge complaint.
Detailed complaint in regard was lodged before the Police
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Inspector of Ankleshwar.
3. In pursuance of the complaint lodged by the complainant
with the Ankleshwar Police Station for the offence under
sections 302, 323 and 114 of the IPC, the investigating agency
recorded statements of the witnesses, drawn panchnama of
scene of offence, discovery and recovery of the muddamal and
obtained FSL report for the purpose of proving the offence.
After having found sufficient material against the respondent
accused, charge-sheet came to be filed in the Court of learned
JMFC, Ankleshwar. As said Court lacks jurisdiction to try the
offence, it committed the case to the Sessions Court, Bharuch
as provided under section 209 of the Code.
4. Upon committal of the case to the Sessions Court,
learned Sessions Judge framed charge at Exh.5 against the
respondent accused for the aforesaid offences. The
respondent accused pleaded not guilty and claimed to be
tried.
5. In order to bring home charge, the prosecution has
examined 09 witnesses and also produced various
documentary evidence 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 trial Court put various incriminating circumstances
appearing in the evidence to the respondent accused so as to
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obtain explanation/answer as provided u/s 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. Divyangana Jhala for
the appellant - State and minutely examined oral and
documentary evidence adduced before the learned Trial
Court.
8. It is sought to be submitted by learned APP that the
learned Sessions Court has unnecessarily recorded the
contradiction in the impugned judgment and order to acquit
the accused. She would further submit that the contradiction
which has taken base for acquitting the accused by the
learned sessions Court, was never proved in the deposition of
complainant PW 1. Thus, error much less patent error
understanding provisions of law has been cropped in the
impugned judgment and order. She would further submit that
PW 1 Ramsing is the eye witness to the incident, who has
categorically deposed that the accused has given blow on the
head of the deceased by weapon called "Tommy". The same
has been corroborated by PW 2, another witness, but the
learned Sessions Court did not rely upon the deposition of
both the witnesses and discarded them on the ground that
their presence on the spot is doubtful. She would further
submit that though there is inconsistency in the injury
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received by the deceased on head subjected to have caused by
the weapon called Tommy, it would not be a fatal to the case
of the prosecution.
9. Learned APP would further submit that the deposition of
two witnesses were sufficient and safe to convict the accused
for the offence under section 302 of the IPC, but the learned
Sessions Court has ignored the deposition of both the
witnesses and thereby has committed serious error. She
would further that though as per the p.m. report, the cause of
death was due to centre vein, running through the neck, has
been cut, and the said blow has not been given by the present
respondent accused, yet he was forming part of the assembly
of other accused, who have collectively beaten the deceased
to death. She would further submit that the charge of offence
punishable under section 114 of the IPC was also fixed against
the accused, and in that circumstances, his presence on the
spot and aiding other accused in commission of the offence
are sufficient to convict the accused for the offence
punishable under section 302 of the IPC, but these all material
aspects are ignored by the learned sessions court and
erroneously acquitted the accused.
10. Upon such submission, learned APP request to allow this
appeal and to reverse the judgment of acquittal to the
judgment of conviction and to pass appropriate order.
11. Having heard learned APP, the question arose that
whether the learned APP could demonstrate patent illegality
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or perversity or error of law in understanding the fact of the
case by the learned Sessions Court in acquitting the accused.
12. Before examining the said issue, it is indeed to refer to
the findings of the learned Sessions Court to acquit the
accused. After narrating the deposition of the witnesses and
various documentary evidence, the learned Sessions Court has
authored reasons in para 17 to 20 and 22 to a acquit the
accused. The reason stated in para 17 to 20 and 22 are in
vernacular language and the transcriped version in English
read as under :-
"(17) In this matter, the complainant Ramsing
states in his deposition that the complainant has, in
his cross-examination, has further stated that on the
day of incident, at about 4-30 o'clock, he went out for
loitering at Sanjali village and Ramfer had met in
GIDC. The complainant further states in his cross-
examination that he had been going out looking for
the labourers. The deceased Ramfer Uttambhai had
met near Aditya Textile. At that time, Ramfer had
stated that I am going to Keshav Chaudhary for
recovering money from him. Therefore, Ramfer had
stated that, right now, I do not have time, but I am
coming in 5 to 10 minutes. Looking to this fact, it is a
totally different fact than the complaint of the
complainant. The Complainant has stated in his
complaint that he and Ramfer both had going out for
loitering in the Panoli GIDC. Now, if we look at the
deposition, Ramsing states that he had going out
looking for the labourers. At that time, Ramfer had
met him near Aditya Textile. It is stated in the
complaint that both of them had going out together,
whereas in the deposition, it is stated that the
deceased Ramfer had met him near Aditya Textile.
The complainant has mentioned in his complainant
that Ramfer had stated that, since useless expenses
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had been made in the marriage, he has to go to
Mukesh Trilokilal Shrivastav in P. C. Textile Company
for recovering money after pursing him for the same.
Whereas Ramsing states in his deposition that he was
going to Keshav Chaudhary for recovering money.
Thus, there is significant contradiction in the
complaint and the deposition of the complainant as to
the deceased Ramfer is going to whom for recovering
money. Further, the complainant states in his
deposition that he going to Keshav Chaudhary in
Doshi Polypacks, whereas the complainant has
mentioned in his complaint that Ramfer had stated
such that he is going to Keshav Chaudhary in P. C.
Textile Company for recovery money. Thus, there is
also contradiction between the complaint of the
complainant and deposition of the complainant as to
in which factory Ramfer had been going to recover
money.
(18) Looking to the facts mentioned in the
complaint of the complainant, he himself and Ramfer
and Ravindra Dhar and Hanuman Lakshman - these
four persons go to P. C. Textile. Whereas, if we look
into the deposition of the complainant, totally
contradictory fact has been revealed. Complainant
also states in his deposition that he had gone near the
tea stall (lorry) situated near Supriya factory and at
that time, they had talked regarding the labourers for
about ten minutes and thereafter, while going
towards Doshi Polypack, Ramfer and Keshav
Chaudhary had met him on the way. The fact of the
said deposition is totally new and in contradiction to
the complainant. Complainant has not stated such
fact in his complaint. Such fact that the deceased
Ramfer and the accused Keshav Chaudhary had met
on the way has not been mentioned in the complaint.
In this manner, the deposition of the complainant is
totally in contradiction to his complaint. Looking to
the complaint of the complainant, all the four of them
together were going in P. C. Textile, whereas if we
look into the deposition, the complainant alone is
going towards P.C. Textile. As per the deposition of
the complainant, he is not stating any such fact in his
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deposition that Ravindra Yadav was accompanying
him. The complainant does not state any such fact
that the name of Ravindra Yadav is mentioned in his
complaint.
(19) If we look into the deposition of the
complainant, he states therein that when they
reached at P.C. Textile, the deceased Ramfer and
Mukesh were having discussion. From this, it is
clarified that the complainant alone had gone at P.C.
Textile, whereas, if we look at the complaint of the
complainant, Ravindra Yadav, Hanuman Lakshaman
and the deceased Ramfer were accompanying him.
In view of this, the deposition of the complainant and
his complaint are totally contradictory and therefore,
the complaint made by the complainant is not
believable because the complainant has stated that
the deceased Ramfer was accompanying him and
they had gone at P.C. Textile, whereas the
complainant has stated in his deposition that when he
reached at P.C. Textile, the deceased Ramfer and
Mukesh Trilokilal were having discussion. In view of
this fact, the presence of the complainant at the site
of incident appears to be doubtful. Complainant
states that accused Keshav Chaudhary had inflicted 2
to 3 blows of 'tommy' on the head of the deceased
Ramfer, but in this matter, if we look at the post
mortem report of the deceased, which is submitted in
this matter vide Exhibit-19, it clearly transpires that
there is only one injury on the head of the deceased.
Injury No.4 mentioned in the P.M. note at column
No.17 is such an injury that there was one vertical
lacerated wound on the back side of the head of the
deceased. Apart from this, there is not a single injury
on the head of the deceased. If the complainant
would have seen such that the accused Keshav
Chaudhary has inflicted 2 to 3 blows on the head of
Ramfer, there would have been 2 to 3 injuries on the
head of the deceased. Even looking at this fact also,
it is not believable that the complainant himself has
seen this incident with his eyes. The Government
Pleader Dara has stated that the complainant himself
is an injured witness. In view of the same, there
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appears to be presence of the complaint at the site of
the incident and the deposition of the complainant
should be believed. The complainant in this matter
has stated in his complaint that accused Keshav
Chaudhary had inflicted 2 to 3 blows of 'tommy' on
the portion of back. Looking to the 'tommy' of the
Muddamal, if such 2 to 3 blows would have been
inflicted with such iron tool tommy, there would have
been swelling caused due to such iron tommy being
inflicted and quite serious injury would have been
caused, but looking at the injury certificate of the
complainant, which is submitted herewith vide
Exhibit-17, and in view of the deposition of the
medical officer Dr.Ajitbhai Pravinbhai Surti, the
complainant had sustained blunt injuries only on the
portion of the chest and back. In view of this, such
fact cannot be believed that the accused Keshav
Chaudhary would have inflicted blows of iron tommy
on the back of the complainant.
(20) In this matter, the complainant has not
stated in his deposition that at the time of incident,
Ravindra Yadav was also present. Complainant has
stated in his complaint that he himself and Ramfer
had gone out for loitering and that at that time,
Ravindra Yadav and Hanuman Lakshaman had met
them. It is stated in the complaint that all the four of
them together were going in P.C. Textile. Whereas
Ravindra Yadav has stated in his deposition that he
had met near P.C. Textile. The Hero Honda vehicle of
Ramfer was parked there and as he saw, there had
been a quarrel between Ramfer and the accused
Keshav Chaudhary and 2 to 3 other persons. Thus,
looking to Ramfer's Hero Honda, he had left to go
towards P.C. Textile. The quarrel between the
deceased Ramfer and accused Keshav Chaudhary and
others had been going on. In view of this fact, it
clearly transpires that Ravindra seems to be the
chance witness. Looking to the complaint of the
complainant, there is no such fact that the deceased
Ramfer was having a Hero Honda vehicle. The
complainant has stated in his deposition that after the
deceased Ramfer met frequently , while once again
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going from the side of Supriya Factory towards Doshi
Factory, Ramfer and Keshav Chaudhary had met on
the way. Complainant also does not state any such
fact that at this time also, Ramfer did not have Hero
Honda or any other vehicle. Thus, Ramfer did not
have any Hero Honda. Even though, Ravindra Yadav
states in his deposition that the Hero Honda of the
deceased was lying near P.C. Textile and due to that,
when he looked towards that side, the deceased
Ramfer and accused Keshav Chaudhary and others
were fighting. In view of this fact, Ravindra Yadav
has been created to be a chance witness. Ravindra
Yadav and other three persons are not even able to
give name of the vehicle. Looking to that fact, the
deposition of Ramsing is also not believable.
(22) In this matter, the Government Pleader
Dara has stated that the deceased himself had
remained present in the police station and his clothes
are smeared in blood. Looking to the FSL report
thereof, the blood group is matching with the blood of
the deceased, but the accused has taken such defense
that when accused Keshav Chaudhary had been
beating the deceased Ramfer, he had interfered in
between to get them separated. This fact can be
considered to be trustworthy due to the reason that
the accused himself has produced himself at the
police station and the police has detained him. If as
per the case of the Prosecution, four persons namely
Keshav Chaudhary, Mukesh Trilokilal, Kamleshsing
Chhotaksing and Buvasing were the persons involved
in attacking and they had run away from there, then
it is quite natural that all the four of them would have
run away together and he would not produce himself
at the Police Station, but as per his statement, he had
interfered in between to get them separated and it is
believable that the Police might have wrongfully
detained him while he was going to the police station
because the person who has attacked / murdered
would not produce himself directly at the Police
Station. Whereas as per the fact of the Prosecution,
all the four persons were involved in attacking and
since all the four of them had run away and our of
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four of them, only the accused person alone would
produce himself at the Police Station, which fact is
not believable. In view of this, there is a specific
reason to believe that the accused himself has
interfered to get them separated at the time of
incident and while coming to the Police Station, the
Police would have wrongfully detained him and
whereas the complaint of the complainant and
deposition of Ravindra Yadav are totally in
contradiction to each other and they are such as it
would raise doubt. Complainant and Ravindra Yadav
are chance witness. If both of them would have seen
the incident by their own eyes, both of them would
have informed at the police station. The prosecution
witness Dayaram also does not state that Keshav
Chaudhary and three others were involved in
committing murder of Ramfer. Thus, upon overall
consideration of the facts, the case against the
accused in this matter is not proved beyond doubt.
The benefit of doubt may be given to the accused
person."
13. What weighed with the learner Sessions Court to acquit
the accused is sharp contradiction in deposition of PW 1 and
2; PW 1 is the complainant. The learned Sessions Court has
doubted the presence of both the witnesses on the spot and
believed that they are chance witnesses. What further
observed by the learned Sessions Court is that PW 1 Ramsing
Yadav has deposed completely in variance of the FIR. Having
arrived at such conclusion, the learned Sessions Court has
compared the deposition of PW 1 with PW 2 and inconsistency
about the incident in both the depositions.
14. Another aspect which has been noted by the learned
Sessions Court that another person Hanuman was also
present on the spot. The prosecution has neither arrayed
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Hanuman as witness nor examined and no reasons has been
supplied thereof.
15. The post conduct of the accused also weighed the
learned sessions court to acquit accused. According to the
prosecution case, there were four accused who have beaten
the deceased collectively. Out of four accused, three ran away
from the sport and uptil, have not been traced out. The
respondent accused is the only person who was arraigned as
accused and rest are shown as absconding accused. The
respondent accused immediately after the incident rushed to
the police station and submitted his clothes stained with
blood. The defence of the accused was this-wise that accused
stepped into the scuffle between the deceased and three other
accused who are on run to save the deceased and as such, his
clothes received the blood of the deceased. He therefore
rushed to the police station and submitted his clothes. The
post conduct of the accused has been examined in background
of section 8 of the Evidence Act by the learned sessions court
and found the same conduct to be trustworthy and credible to
deny the conviction of the accused.
16. In the limited jurisdiction of the appeal, against the
judgment and order recording acquittal, we have reviewed the
evidence on record vis-a-vis analysis made by the learned
sessions court. As per the FIR, the complainant stated that he
and deceased were going together towards Panoli GIDC,
whereas in deposition, PW 1 - complainant stated that he
went for search of labourers, and then he met the deceased
near Aditya Textile. So there is a sharp cleavage in the version
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of the FIR as well as in the deposition. The FIR indicates that
the deceased has told the complainant that he is going to
recover the amount from Mukesh Trilokilal, but in deposition,
he deposed that the deceased has gone to Keshav Choudhary
(accused) for recovering the amount. This is another
contradiction. Another contradiction which is noted is that the
deceased has told that he is going to Doshi Pollypack to
recover the amount from accused Keshav Choudhary, but in
the FIR, PW 1 - complainant stated that deceased has told him
that he is going to recover the amount from Keshav
Choudhary, who is at PC Textile. The FIR records that PW 1,
deceased Ramfer, Ramsing and one Hanuman, all four went
together to PC Textile to recover the amount, but in the
deposition, he stated that they went to Supriya textile near tea
post and found for the labourers and thereafter they went
towards Doshi Pollypack, where the deceased met accused
Keshav Choudhary on the road. So all inconsistency and
contradictions are noted by the learned sessions court and
also would be envisioned during the review of the evidence.
17. There are more contradictions. PW 1 deposed that
accused has given 2-3 blows by weapon like Tommy on the
forehead of the deceased, but PM note Exh. 19 has registered
only one injury on the forehead being injury No.4 being one
lacerated wound. No other injuries were found, and this
injury was not the reason for the death of the deceased. If the
blow on the forehead is given by weapon, like Tommy, it is
highly unbelievable that lacerated wound in nature of injury
No.4 would cause on the forehead of the deceased. The
complainant himself is also injured witness as per the
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prosecution case. The allegation of grievous hurt caused by
the accused has been made by PW 1 complainant, but the
medicals certificate Exh.17 shows only the complaint of pain.
Except that, no injury was received.
18. PW 2 Ravindra is also arrayed as eye witness, but his
deposition is also full of contradiction and it is elaborately
discussed by learned Sessions court in para 20 of the
impugned judgment and order.
19. The defence of the accused, which is believed by the
learned sessions court is elaborately discussed in para 22 of
the judgment and order. The post conduct of the accused is
believable. Immediately after the incident, he rushed to the
police station and on his own, he has submitted his clothes
having blood stain. It is highly unbelievable that if accused
has committed murder and then he surrendered to the police.
The say of the accused is that he stepped into the scuffle took
place between three accused and the deceased and in the
process of saving the deceased, his clothes were stained with
blood of the deceased. The story of the accused is more
believable on the ground that three other accused who are the
main accused, have run away and yet not traced. If the
present respondent accused is part of the other accused who
have collectively beaten the deceased, then there was every
chance that the respondent accused may also run away from
the spot, but he did not. The above aspect has been
elaborately discussed by the learned Sessions Court and given
benefit of doubt to the accused. The learned sessions court
has doubted the presence of both the witnesses and it appears
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to be sound interpretation. Since the FIR is exhibited
document (Exh.9), the statement of the complainant - PW 1
recorded therein can be compared with his deposition to find
out the contradiction between both the statements.
20. In case of Mallappa v. State of Karnataka, (2024) 3 SCC
544, the Hon'ble Apex Court observed as under:-
"25. . 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.
26. 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
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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.
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;
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(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."
21. The scope and ambit of the appeal against the judgment
and order recording acquittal has been succinctly explained
by the Hon'ble Privy Council in case of Sheo Swarup Vs. King
Emperor, AIR 1934 Privy Council 227, wherein the Privy
Council has explained the scope and ambit of the appeal u/s
417 of the old CrPC, which has been replaced by section 378
of the CrPC. In para 8 and 9 of the judgment, the Hon'ble
Privy Council has exposed the scope of appeal against the
judgment and order of acquittal, which reads as under:-
"8. There is, in their opinion, no foundation for the
view, apparently supported by the judgments of some
Courts in India, that the High Court has no power or
jurisdiction to reverse an order of acquittal on a
matter of fact, except in cases in which the lower
Court has "obstinately blundered" or has "through
incompetence, stupidity or perversity" reached such
"distorted conclusions as to produce a positive
miscarriage of justice," or has in some other way so
conducted or misconducted itself as to produce a
glaring miscarriage of justice, or has been tricked by
the defence so as to produce a similar result.
9.Sections 417, 418 and 423 of the Code give to the
High Court full power to review at large the evidence
upon which the order of acquittal was founded, and to
reach the conclusion that upon that evidence the
order of acquittal should be reversed. No limitation
should be placed upon that power, unless it be found
expressly stated in the Code. But in exercising the
power conferred by the Code and before reaching its
conclusions upon fact, the High Court should and will
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always give proper weight and consideration to such
matters as (1) the views of the trial Judge as to the
credibility of the witnesses; (2) the presumption of
innocence in favour of the accused, a presumption
certainly not weakened by the fact that he has been
acquitted at his trial; (3) the right of the accused to
the benefit of any doubt; and (4) the slowness of an
appellate Court in disturbing a finding of fact arrived
at by a Judge who had the advantage of seeing the
witnesses. To state this, however, is only to say that
the High Court in its conduct of the appeal should
and will act in accordance with rules and principles
well known and recognised in the administration of
justice."
22. In case of Ahir Raja Khima Vs. State of Saurashtra, AIR
1956, in a decision of three Judges Bench of the Hon'ble Apex
Court, Hon'ble Mr. Justice Vivian Bose (as he then was)
authored the majority view to approved the ratio laid down by
the Privy Council in case of Sheo Swarup (supra). Doctrine of
"compelling reasons" is added to scope of interference in
appeal against acquittal. Relevant findings read as under:-
"1. The only question in this appeal is whether the
High Court had in mind the principles we have
enunciated about interference under S. 417, Criminal
P. C. when it allowed the appeal filed by the State
against the acquittal of the appellant. It is, in our
opinion, well settled that it is not enough for the High
Court to take a different view of the evidence; there
must also be substantial and compelling reasons for
holding that the trial Court was wrong. 'Almer Singh
V. State of Punjab,' AIR 1953 SC 76 at pp. 77-78 and if
the trial Court takes a reasonable view of the facts of
the case, interference under S. 417 is not justifiable
unless there are really, strong reasons for reversing
that view, 'Surajpal Singh v. State',AIR 1952 SC 52 at
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p. 54."
23. In view of above, learned APP failed to demonstrate any
illegality and perversity or error of law in the impugned
judgment and order recording acquittal by the learned
sessions court. The learned sessions court before passing the
judgment and order of acquittal, elaborately recorded, the
evidence record at a considerable length and analyzed the
evidence, both oral and documentary and recorded acquittal.
Thus, the impugned judgment and order suffers from no
illegality or perversity or error of law, so as to warrant
interference at the hands of this court.
24. In the result, present appeal fails and stands rejected.
The impugned judgment and order of acquittal dated
30.6.1999 passed by the learned Addl. Sessions Judge,
Bharuch in Sessions Case No.170 of 1997 is hereby approved.
Bail and bond stands discharged. Muddamal, if not destroyed,
is directed to be destroyed forthwith.
25. R & P to be sent back to the concerned court
immediately.
(SANDEEP N. BHATT,J)
(J. C. DOSHI,J)
SHEKHAR P. BARVE
