Gujarat High Court
State Of Gujarat vs Vepari Ibrahim Miraqnji Alias Miyaji ... on 7 June, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 553 of 1998
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
VEPARI IBRAHIM MIRAQNJI ALIAS MIYAJI (VANTHA)
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Appearance:
MS. DIVYANGNA JHALA, ADDL. PUBLIC PROSECUTOR for the
Appellant(s) No. 1 - State
for the Opponent(s)/Respondent(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1
MR KAIVAN K PATEL(6338) 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
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(PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)
1. Feeling aggrieved and dissatisfied with the judgment
and order of acquittal dated 16.03.1998 passed by the
learned Additional Sessions Judge, Mehsana, Camp-
Patan, in Sessions Case No.325 of 1996, whereby the
respondent herein - original accused came to be acquitted
for the offence punishable under Section 302 of the
Indian Penal Code, the appellant - State has preferred
present appeal under section 378 of the Code of Criminal
Procedure, 1973 ("the Code" for short).
2. Brief facts of the case of prosecution are as under:
2.1 The charge against the accused is that he has
committed crime under Section 302 of Indian Penal Code
by causing death of Salam Muhammad Jivabhai with a
knife at Sami village Khatkivas (Kasaiwad) on 1-9-96 at
around 8:00 pm.
2.2 Deceased Mohammadbhai Jivabhai Molesalam was
the brother of the complainant Ismailbhai Jivabhai.
Another brother of the deceased, Chandbhai was residing
near the bus stand in Sami. When the complainant was
at his home at 8 o'clock at night on 1-9-96, Madina,
daughter of his elder brother Nurbhai came and told him
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that Mohammadbhai and the accused were quarreling.
Hence the complainant immediately went to the place of
the incident. The complainant saw that his brother
Mohammadbhai and the accused were scuffling. As per
the case of the prosecution, the accused had an open
knife with him at that time and he stabbed in
Mohammadbhai's stomach with it. Upon seeing this,
when the complainant shouted, the accused immediately
ran away from the place. Chandbhai and Usmanbhai,
brothers of the complainant arrived there. As per the
case of the prosecution, the complainant went to the
injured Mohammadbhai Jivabhai. Upon inquiring in this
connection, Mohammadbhai told him that the accused
was saying that, "Why are you jesting with my sister-in-
law?" On such ground of suspicion, the accused stabbed
him in the stomach. He immediately took the injured
Mohammadbhai to Government Hospital, Sami for
treatment. When the doctor advised to take him to
Mehsana Civil Hospital, they came to Mehsana from
there and Mohammadbhai was transferred from
Mahesana to Ahmedabad Civil Hospital. Mohammadbhai
Jivabhai died at three o'clock in the morning during the
treatment there. The doctor on duty, Mr. Dave, gave this
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message to Yogendrabhai, the civil duty constable
working in the civil hospital. On the basis of such
message, the report was made to the Executive
Magistrate to complete the inquest of the deceased.
Thereafter, the inquest Panchnama of the deceased
Mohammadbhai was made in the presence of the
Panchas and the body of Mohammadbhai was handed
over to the doctor for postmortem along with the report.
Thereafter, the doctor on duty did postmortem of the
body of Mohammadbhai and gave his opinion about it.
After completing the necessary proceedings, the dead
body of Mohammadbhai was handed over to the
complainant.
2.3 As per the case of the prosecution, the complainant
returned Sami with the dead body of Mohammadbhai. He
lodged complaint regarding this incident in Sami Police
Station and same was registered with First Cr. No.
102/96 and investigation was started. The required
statements of the witnesses were taken by the
investigating officer. Panchanama of the place was made
in the presence of panchas. When an unknown person
produced the knife of mudamal, it was seized in the
presence of the panchas and a panchnama was made of
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it. The clothes of the deceased were seized in the
presence of the panchas and a panchnama was made in
this regard. Seized muddamal was sent to FSL for
investigation. Upon receiving the opinion in this matter,
the investigating officer submitted chargesheet of the
above offence against the accused in the Court of
Judicial Magistrate First Class, Sami. As only Sessions
Court has power to conduct proceedings regarding the
crime mentioned in the charge sheet, the Judicial
Magistrate First Class committed the chargesheet against
the accused under Section 209 of the Criminal Procedure
Code and forwarded it to the District and Sessions
Judge, Mehsana, from where it is placed before me for
trial.
3. In pursuance of the complaint lodged by the
complainant with the Sami Police Station for the offence
under Sections 302 of the Indian Penal Code, the
investigating agency recorded statements of the witnesses,
drawn panchnama of scene of offence, discovery and
recovery of weapons and obtained FSL report for the
purpose of proving the offence. After having found
sufficient material against the respondent - accused,
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charge-sheet came to be filed in the Court of learned the
JMFC, Sami. As said Court lacks jurisdiction to try the
offence, it committed the case to the Sessions Court,
Mehsana as provided under Section 209 of the Code.
4. Upon committal of the case to the Sessions Court,
Mehsana, the learned Sessions Judge framed charge at
Exh.1 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 13 witnesses and also produced various
documentary evidence before the learned trial court, more
particularly described in para 4 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 respondent - accused so as to obtain
explanation/answer as provided u/s 313 of the Code. In
the further statement, the respondent - accused denied
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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 minutely examined oral
and documentary evidence adduced before the learned
trial court. Learned advocate Mr. Kaivan K. Patel
appears on behalf of the respondent No.1-accused.
8. Learned APP Ms. Divyangna Jhala has submitted
that the learned trial court has committed gross error by
not properly appreciating the material evidence available
on the record and by acquitting the respondent herein -
accused. She has drawn our attention towards the charge
framed at Exh.1, whereby, the charge is framed under
Section 302 of the Indian Penal Code, as the accused
person has committed offence on the night of 01.09.1996
at about 8 p.m. at Sami Village by giving blow with the
knife to the deceased- Salam Muhammad Jivabhai on the
basis of suspicion that the deceased was having some
illicit relationship with the sister-in-law of the accused
person. She has further drawn the attention of this
Court towards the deposition of the two witnesses who
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are required to be considered as eye-witnesses; one is the
brother of the deceased- Ismailbhai Jivabhai
(complainant) whose deposition is at Exh.7. She has
submitted that from the deposition of the complainant, it
clearly established that the accused person had given
knife blow to the deceased and due to that the deceased
received injuries and at the first instance, the deceased
was taken to the primary health center and thereafter to
the government hospital and thereafter, the deceased-
Salam Muhammad Jivabhai expired during the course of
the treatment and accordingly, the complaint was filed
by the complainant - Ismailbhai Jivabhai. She has
further submitted that the complainant has given proper
deposition and even in the cross-examination also, the
complainant has supported the case of the prosecution.
8.1 She has also drawn our attention towards the
deposition at Exh.9 of Chandbhai Jivabhai, who happened
to be the brother of the deceased. She has submitted
that Chandbhai Jivabhai has also supported the case of
the prosecution and he had seen the incident whereby
the accused person was giving blow with the knife to
the deceased. She has further submitted that the
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prosecution has also examined the witness- Yogendrasinh
Raysinh, Police Officer at Exh.10, who has recorded
Inquest Panchnama. She has also drawn our attention
towards the deposition of witness - Janubhai Alibhai
Sepoy at Exh.22, who is Panch witness of the
panchnama of recovery of weapon. She has also drawn
attention of this Court towards the deposition of Panch
witnesses- Ismailbhai Daudbhai at Exh.19 and
Ahmedbhai Dosabhai at Exh.20, who are the witnesses of
recovery of clothes. She has also drawn our attention
towards the deposition of witness at Exh.24- Ishaq
Farikmohmad Ganchi and Exh.25- Jivanbhai Shakarabhai,
who are Panch witnesses of Inquest Panchnama as well
as who has recorded the complaint, respectively. She has
also drawn our attention towards the deposition of the
Doctor Amratlal V. Patel at Exh.28 and submitted that
from the deposition, the story of the prosecution is also
supported. She has also drawn our attention towards the
deposition of the Dr. Jayendra R. Modi at Exh.32, who
performed the postmortem of the deceased- Salam
Muhammad Jivabhai. She has further submitted by
drawing the attention of this Court towards the P.M.
Note and F.S.L. Report etc., that the prosecution has
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proved the case beyond reasonable doubt as the recovery
of the weapon indicates the blood group on the weapon
concerned, which also supports the case of the
prosecution and recovery and discovery is also proved by
the deposition of the witnesses and therefore, she has
submitted that the trial Court has committed error in
acquitting the respondent herein - accused, though the
prosecution has proved its case beyond reasonable doubt
by way of providing cogent and convincing evidence on
the record.
9. We have perused the material available on the
record and we have also considered the submissions
made at the bar by the learned APP. We have also re-
appreciated and re-examined the entire evidence available
on the record. It transpires that the incident had taken
place, whereby, the accused person had allegedly given
blow with the help of knife to the deceased-Salam
Muhammad Jivabhai, from the deposition at Exh.7 of
Ismailbhai Jivabhai, who happens to be the brother of
the deceased and complainant, his say is that, when the
incident had taken place i.e. on 01.09.1996, at about 8
p.m. in the Mohalla of the Butchers and the complainant
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was present at his house and at that point of time, the
daughter of his brother, Madina has called him and told
him that Salam Muhammad Jivabhai and Ibrahim
Vantha have quarreled and when he reached the place of
incident he found that both Salam Muhammad Jivabhai
and Ibrahim Vantha were fighting with each other by
giving blows and thereafter, Ibrahim Vantha has pushed
the brother of the complainant on the floor and
thereafter, he has given blow with the knife to the
deceased and thereafter, the accused ran away.
Thereafter, it is stated that his brothers Chandbhai and
Usmanbhai had come and they have also taken care of
their brother- Salam Muhammad Jivabhai, who got
injured and at that point of time, his brother has said
that, Ibrahim Vantha was having some suspicion that he
was having some relation with the sister-in-law of
Ibrahim and therefore, the scuffle had taken place.
Thereafter, all the three brothers went to the primary
health center at Sami and doctor has suggested to take
his brother to the Civil Hospital, Mehsana and finally,
they have shifted brother- Salam Muhammad Jivabhai to
Civil Hospital, Ahmedabad, whereby, during the course of
treatment, his brother- Salam Muhammad Jivabhai died
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due to the injuries received. Thereafter, postmortem was
also carried out. The complainant - Ismailbhai Jivabhai
has also given explanation that he was moving to the
hospital with his deceased brother and therefore, the
complaint came to be registered after delay of 21 hours
of the incident. That is the sum and substance of the
case of the prosecution.
10. In the cross-examination, prosecution has put
the question that why the complainant had not
intervened in the fight between the brother of the
complainant and Ibrahim Vantha, though he was present
at the time of the incident and why he has not made
any attempt to save his brother ?, The complainant was
not in a position to give satisfactory reply to this
question. Suggestion is also put regarding the possibility
that the injury is caused to the deceased due to his own
weapon when he has fallen down as he kept the knife
in pocket of his pant.
10.1 We have also perused the deposition of
Chandbhai Jivabhai, who is the brother of the deceased.
In view of the deposition of Chandbhai Jivabhai at
Exh.9, he has in his examination-in-chief, stated that he
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rushed to the place of incident and reached first and he
has seen the fighting of the deceased with the accused
person continued for about five to ten minutes but he
has not made any attempt to save his brother or to stop
that fight and thereafter, as per his statement, the
accused person ran away and thereafter, other persons
reached the place of incident. As per his deposition, after
accused has run away, Ismailbhai Daudbhai, Ahmadbhai
Valibhai, Mustufabhai Chanbhai, Usmanbhai Jivabhai and
Noorbhai Jivabhai had come to the place and thereafter,
they have taken Mohammad to the government primary
health center and thereafter, as suggested by the doctor
present there, they have taken the deceased to the Civil
Hospital, Ahmedabad, for treatment of the deceased-
Salam Muhammad Jivabhai. From his cross-examination,
it transpires that he has admitted that he reached the
place of incident, firstly and thereafter, other persons
have come to the place of incident, which is totally in
contradiction to the deposition of the complainant. The
presence of both the witnesses creates suspicion from the
depositions itself.
10.2 Now, considering the other material available
on the record, it transpires that one Yasinbhai has
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produced the knife, which is the muddamal article no.3.
The Panch witness, who is present at the time of so-
called recovery from Yasinbhai Bachubhai, is also well
versed with the procedure of the law as he was serving
with one lawyer as a driver. Moreover, no explanation is
coming on record that how the knife, which is produced
by Yasinbhai, can be connected with the offence in
question. Most importantly, the prosecution has failed to
examine Yasinbhai as a witness.
10.3 The other aspect is very important that the
FIR is filed almost after 21 hours of the incident. It is
noteworthy that as per the evidence available on record,
only complainant- Ismailbhai Jivabhai has accompanied
his deceased brother- Salam Muhammad Jivabhai when
they went to the Civil Hospital, Ahmedabad. As per the
case of the prosecution, initially, Ismailbhai alongwith
Chandbhai and Usmanbhai, all went to the primary
health center and Dr. Amrutlal Patel asked them to take
their brother for further treatment at Mehsana or
Ahmedabad and thereafter, Chandbhai Jivabhai and
Usmanbhai Jivabhai had not gone to Ahmedabad and
they stayed in the village itself. Therefore, the
explanation given for delay in filing the complaint that
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the complainant is busy with taking the deceased from
one to the other hospital and therefore, the delay in
filing of the complaint is caused; this creates serious
doubt as other brothers who are knowing well that the
incident has taken place and when Chandbhai Jivabhai
and Usmanbhai Jivabhai were available in the village
itself, but they have not even cared to inform to the
Police about the incident which had taken place. As per
the say of the doctor of the primary health centre, he
has given "vardhi" to the Police about the said incident
and for recording of dying declaration but that "vardhi"
is not reflected from the record of the Police Station,
more particularly, in the Station Diary. Therefore, the
version of the doctor is also not believed by the trial
court.
10.4 One more aspect that blood of group-'B' is
found from the knife, which is recovered from one
Yasinbhai. The said knife came to be recovered almost
after a period of seven days, thereafter also, the blood is
found from the knife in question, this also creates
suspicion. More particularly, when the accused himself
has not produced the knife in question or the knife is
not recovered at the instance of the accused and in
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absence of examining Yasinbhai by the prosecution, who
has produced that knife will certainly cause serious
suspicion that the same weapon is used in the offence
and that factor is not proved as required under the law
by the prosecution.
10.5 Considering all these aspects, more particularly,
the material contradictions that when one brother-
Chandbhai of the deceased, who is claiming that he is
eye-witness and he was present at the time of occurrence
of incident and he was first to reach the place of
incident and other persons have come after the accused
ran away from the place of incident. In the same breath,
the complainant- Ismailbhai Jivabhai has also claimed
that he was the first person to reach the place of
incident and has seen the incident and he was eye-
witness and Chandbhai Jivabhai and others have come
to the place of incident after the accused ran away from
the place of incident. These material contradictions are
fatal to the case of the prosecution. Moreover, conduct of
such witnesses, who happens to be real brothers of the
deceased, not to intervene in the scuffle also creates
serious doubt about the story of the prosecution.
Additionally, the FIR which came to be filed after 21
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hours of delay, which also suggests that the FIR may be
filed with some oblique motive to implicate the accused
person.
10.6 In view of the scope of acquittal appeal, for
which, the legal position is discussed hereinafter. We are
of the opinion that there is no reason for this Court,
even after re-appreciating the entire evidence, to interfere
and to upset the findings given by the trial Court and
the trial Court has not committed any error in
acquitting the accused person.
10.7 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 appelant 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,
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palpably wrong, manifestly erroneous or demonstrably
unsustainable.
10.8 It is fruitful to refer the provisions of Section
302 of the Indian Penal Code, 1860, as under:
"Section 302 in The Indian Penal Code, 1860:-
302. Punishment for murder.--
Whoever commits murder shall be punished with death, or
imprisonment for life, and shall also be liable to fine."
10.9 It is also relevant to refer the provisions of
Section 378 of the Code, as under:
"Section 378 in The Code of Criminal Procedure, 1973:-
378. Appeal in case of acquittal.
[(1) Save as otherwise provided in sub-section (2) and
subject to the provisions of sub-sections (3) and (5),-
(a) the District Magistrate may in any case, direct the
Public Prosecutor to present an appeal to the Court of
Session from an order of acquittal passed by a Magistrate
in respect of a cognisable and non-bailable offence;
(b) the State Government may, in any case, direct the
Public Prosecutor to present an appeal to the High Court
from an original or appellate order of an acquittal passed
by any Court other than a High Court [not being an order
under clause(a)] or an order of acquittal passed by the
Court of Session in revision.]
(2) If such an order of acquittal is passed in any case in
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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
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
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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)."
10.10 In the case of Ram Kumar v. State of
Haryana, reported in AIR 1995 SC 280, Supreme Court
has held as under:
"The powers of the High Court in an appeal from order of
acquittal to reassess the evidence and reach its own conclusions
under Sections 378 and 379, Cr.P.C. are as extensive as in any
appeal against the order of conviction. But as a rule of prudence,
it is desirable that the High Court should give proper weight and
consideration to the view of the Trial Court with regard to the
credibility of the witness, the presumption of innocence in favour
of the accused, the right of the accused to the benefit of any
doubt and the slowness of appellate Court in justifying a finding
of fact arrived at by a Judge who had the advantage of seeing
the witness. It is settled law that if the main grounds on which
the lower Court has based its order acquitting the accused are
reasonable and plausible, and the same cannot entirely and
effectively be dislodged or demolished, the High Court should not
disturb the order of acquittal."
10.11 As observed by the Hon'ble Supreme Court in
the case of Rajesh Singh & Others vs. State of Uttar
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Pradesh reported in (2011) 11 SCC 444 and in the case
of Bhaiyamiyan Alias Jardar Khan and Another vs. State
of Madhya Pradesh reported in (2011) 6 SCC 394, while
dealing with the judgment of acquittal, unless reasoning
by the learned trial court is found to be perverse, the
acquittal cannot be upset. It is further observed that
High Court's interference in such appeal in somewhat
circumscribed and if the view taken by the learned trial
court is possible on the evidence, the High Court should
stay its hands and not interfere in the matter in the
belief that if it had been the trial court, it might have
taken a different view.
10.12 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
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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."
10.13 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.
10.14 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
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Hon'ble Apex Court in the case of Mallappa and Others
vs. State of Karnataka reported in (2024) 3 SCC 544,
and, the relevant observations are as under:
"25. We may firstly discuss the position of law regarding the scope of
intervention in a criminal appeal. For, that is the foundation of this
challenge. It is the cardinal principle of criminal jurisprudence that there
is a presumption of innocence in favour of the accused, unless proven
guilty. The presumption continues at all stages of the trial and finally
culminates into a fact when the case ends in acquittal. The presumption
of innocence gets concretized when the case ends in acquittal. It is so
because once the Trial Court, on appreciation of the evidence on record,
finds that the accused ase ends in acquittal. The presumption of
innocence gets concretized when the case ends in acquittal. It is so
because once the Trial Court, on appreciation of the evidence on record,
finds that the accusedwas not guilty, the presumption gets strengthened
and a higher threshold is expected to rebut the same in appeal.
26. No doubt, an order of acquittal is open to appeal and there is no
quarrel about that. It is also beyond doubt that in the exercise of
appellate powers, there is no inhibition on the High Court to re-
appreciate or re-visit the evidence on record. However, the power of the
High Court to re-appreciate the evidence is a qualified power, especially
when the order under challenge is of acquittal. The first and foremost
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
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reversed on a mere difference of opinion. What is required is an
illegality or perversity.
27. It may be noted that the possibility of two views in a criminal case
is not an extraordinary phenomenon. The 'two-views theory' has been
judicially recognized by the Courts and it comes into play when the
appreciation of evidence results into two equally plausible views.
However, the controversy is to be resolved in favour of the accused. For,
the very existence of an equally plausible view in favour of innocence of
the accused is in itself a reasonable doubt in the case of the
prosecution. Moreover, it reinforces the presumption of innocence. And
therefore, when two views are possible, following the one in favour of
innocence of the accused is the safest course of action. Furthermore, it
is also settled that if the view of the Trial Court, in a case of acquittal,
is a plausible view, it is not open for the High Court to convict the
accused by reappreciating the evidence. If such a course is permissible,
it would make it practically impossible to settle the rights and liabilities
in the eyes of law.
28. In Selvaraj v. State of Karnataka, "
13. Considering the reasons given by the trial court and on appraisal of
the evidence, in our considered view, the view taken by the trial court
was a possible one. Thus, the High Court should not have interfered
with the judgment of acquittal. This Court in Jagan M. Seshadri v.
State of T.N. [(2002) 9 SCC 639] has laid down that as the appreciation
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
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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)
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
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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 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
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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:
(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;
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(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. Considering all these aspects, the prosecution
has miserably failed to prove its case beyond reasonable
doubt and therefore, we found that the acquittal recorded
by the trial Court is justified. Considering the reasons
given in the judgment and various aspects discussed by
the trial Court, we are of the opinion that the
prosecution has miserably failed to prove the case
punishable under Section 302 of the IPC against the
present respondent-accused and the reasons given by the
trial Court are possible reasons and the view taken by
the trial Court is a plausible view. The trial Court has
rightly given the benefit of doubt to the accused person
as the prosecution has miserably failed to establish its
case beyond reasonable doubt.
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12. We have found that no perverse or serious error or
illegality is committed by the trial Court while recording
the reasons or while appreciating the evidence available
on the record and therefore, the acquittal which is
recorded by the trial Court is found just and proper.
13. Considering the aforesaid facts and circumstances of
the case and law laid down by the Hon'ble Supreme
Court, while considering the scope of appeal under
Section 378 of the Code of Criminal Procedure, no case
is made out to interfere with the impugned judgment
and order of acquittal as the learned trial court has
rightly given the cogent and convincing reasons for
acquitting the present respondents - original accused.
14. In view of the above and for the reasons stated
above, present Criminal Appeal deserves to be dismissed
and is, accordingly, dismissed.
15. Accordingly, the impugned judgment and order of
acquittal dated 16.03.1998 passed by the learned
Additional Sessions Judge, Mehsana in Sessions Case
No.325 of 1996 is hereby confirmed.
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16. 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)
SLOCK BAROT
