Gujarat High Court
State Of Gujarat vs Bharatkumar Baliram Vaishya on 14 May, 2025
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
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R/CR.A/399/1998 JUDGMENT DATED: 14/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 399 of 1998
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
and
HONOURABLE MR.JUSTICE R. T. VACHHANI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
BHARATKUMAR BALIRAM VAISHYA & ANR.
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Appearance:
MR MANAN MEHTA, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1,2
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1,2
MR.MRUDUL M BAROT(3750) for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
and
HONOURABLE MR.JUSTICE R. T. VACHHANI
Date : 14/05/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
1. Feeling aggrieved and dissatisfied with the judgment and
order of acquittal dated 20.02.1998 passed by the learned
Sessions Judge, Ahmedabad City in Sessions Case No.89 of
1994, whereby the respondents accused came to be acquitted
for the offences under section 307 read with section 114 of
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Indian Penal Code and under section 135(1) of 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 accused no.1 had
animosity with the brother of the complainant and therefore, the
accused no.1 - Bharat Paatiram attacked on the complainant
Dhansagar with the weapon like axe having blade fitted in the
iron pipe and at that time, the accused no.2 - Shobhransinh @
Shobhraj was also present to abet the accused no.1 - Bharat. As
per the case of the prosecution, when this incident happened,
police officers and several other police personnel reached there
and they moved the injured person to the hospital and arrested
the accused no.1 - Bharat Paatiram as he was present on the
spot at the scene of offense. Whereas the accused no.2 escaped.
Thereafter, the complainant - injured person was moved to the
hospital and he was given treatment. Therefore, complaint was
lodged.
3. In pursuance of the complaint lodged by the complainant
with the Gomtipur Police Station for the offence under sections
307, 114 of IPC and section 135(1) of Bombay Police Act, 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, charge-sheet came to be filed in the Court
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of learned JMFC concerned. As said Court lacks jurisdiction to
try the offence, it committed the case to the Sessions Court,
Ahmedabad as provided under section 209 of the Code.
4. Upon committal of the case to the Sessions Court,
Ahmedabad, learned Sessions Judge framed charge at Exh.2
against the respondent accused for the aforesaid offences. The
respondent accused pleaded not guilty and claimed to be tried.
During the course of trial, the prosecution has examined in all
10 witnesses. The details of the aforesaid evidence led by the
prosecution is reproduced in the tabular form as under :-
~:: Oral Evidence ::~
Sr. no. Particular Exh.
Complainant PW-1
~:: Documentary Evidence ::~
Sr. no. Particular Exh.
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5. 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
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.
6. We have heard learned APP Mr. Manan Mehta for the
appellant - State and learned advocate Mr.Barot for respondents
and minutely examined oral and documentary evidence adduced
before the learned Sessions Court.
7. Learned APP Mr.Manan Mehta for the appellant - State
would submit that learned Sessions Court committed error in
acquitting the respondents and not believing the deposition of
witness - Harshadkumar - PW-3 and Jagdishchandra - PW- 4. It
is submitted that aforesaid witnesses are eye witness and they
have seen accused no.1 caught with weapon. It is submitted that
considering the deposition of this witnesses, impugned
judgment is required to be interfered with and required to be
quashed and set aside as learned Trial Court failed to consider
deposition of this witnesses.
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8. Learned advocate Mr.Barot for the respondents supported
the impugned judgment and submitted that no interference is
called for and therefore, he submits to dismiss the appeal.
9. Heard learned advocates for the parties and perused the
deposition of witnesses as also documentary evidence placed on
record. On perusal of complaint which is placed on record (Ex.12
- page no.233) read with deposition of complainant at Exh.11, it
appears that version of the complainant appears to be
contradictory. We have also perused deposition of panch witness
with respect to recovery of weapon and recovery of clothes, but
both of them have turned hostile. We have considered
deposition of two eye witnesses - Harshadkumar - Exh.15 and
Jagdishchandra Shrimali - Exh.17. Considering both the
deposition, it emerges that they are contradictory in nature
though both of them are eye witness. On considering evidence on
record, weapon which was used to inflict blow behind head of
complainant itself is not proved. We have also considered
deposition of Medical Officer at Exh.37. In his deposition, Doctor
has stated that there were injuries on the nose of complainant
and it could have resulted in serious injury, however, it is opined
that having examined patient (complainant), he was given Danur
injunction and no fracture was found. Certificate to that effect is
also issued by Medical Officer which is produced at Exh.38. We
have also perused said certificate which supports deposition of
Doctor. It also emerge that complainant was treated as outdoor
patient. In totality case of the prosecution is not believed by
learned Sessions Court.
10. To arrive at final conclusion, we deem it proper to
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reproduce para 15,20,21,22,23 and 24 of the impugned
judgment, which reads as under (it is in Gujarati language, for
better understanding it is translated in English) :-
"15) Considering the depositions of the complainant as
well as eye-witnesses Police Constable Harshadkumar and
Police Inspector Shrimali together, there is also a vast
contradiction therein. As per the deposition of Dhansagar,
he was caused injury by someone from backside and
looking back, he saw a person who was Bharat. He states
that he caused me injury on the posterior region of head. I
do not know as to by which weapon he caused me an
injury. I had not made any conversation with the accused
at that time. He did not say me anything at that time.
Thus, the complainant does not state regarding any
conversation before the incident. In that manner, after
sustaining injury from back side and seeing the said
accused, he felt that the accused has caused injury to him.
Thereafter, he states that police vehicle came at that time
and police took me to the hospital. He also states that I do
not know as to who came there because I went
unconscious. Police Inspector Shrimali states in his
deposition that he was in patrolling in the government
vehicle. Police Constable Ramesh and P.C. Harshadkumar
were with me. It appeared that some quarrel is happening
near Balabhai Chhaganbhai chawl at 20:45 hours and
therefore, I stopped the vehicle, inquired and saw that one
person, armed with weapon like axe, had caused an injury
to one person on the posterior region of head and person
accompanying him was escaped. Therefore, we rushed and
caught hold the person causing injury and upon asking his
name, he stated Bharatkumar Paatiram. Thus, the police
inspector Jagadishchandra Manilal Shrimali states that
the person causing the injury in the head was Bharat
Paatiram. In this manner, he has identified Bharatkumar
Paatiram before court. Mr. Shrimali states that he took the
injured person at Shardaben Hospital in the government
vehicle, whereas, as per the deposition of Dhansagar, he
was taken to the Civil Hospital and as per the deposition of
the Dr. Modi, he examined the injured at Civil Hospital.
Similarly, Harshadkumar states in deposition that when
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they reached near Balabhai Chhaganlal chawl while going
to Vikram Mill from Green Hotel, they saw quarrel there.
He saw that one person was beating another person with
the weapon like axe having blade fitted in the iron pipe and
they caught the injurer. Injurer was Bharat Paatiram and
person accompanying him escaped. The complainant does
not state any such fact that those two persons came there
and out of them, one person caused injury and another
person escaped. Whereas, the Inspector Shrimali and
Police Constable Harshadkumar state that another person
escaped. In the presence of the police i.e. when the police
inspector Shrimali was present with his two police
constables and when they had a government vehicle, if
they had seen this incident for such long time, it cannot be
considered that they cannot catch the another accused.
They do not say anything as to whether they drove the
government vehicle to catch him or not. Likewise, if the
accused was arrested at the scene of offense, calling two
panchas at the same time, panchnama of his physical
condition was required to be drawn, which is not done by
the prosecution or it could not be established so. If the
accused no.1 Bharat is arrested at the place of offense,
neutral witnesses of two panchas would have submitted
this fact before this court, but the prosecution could not
establish so. Moreover, the complainant has not averred
such fact that two persons were quarreling with him or
another person was scuffling with him but he only states
that he was caused injury from back side and at that time,
the accused did not speak anything. Whereas, Police
Inspector Shrimali states that it appeared to us some
quarrel was running. Therefore, I stopped the car and got
down and caught one accused. It would be an exaggeration
to believe that a quarrel is running, scuffle is going on,
police vehicle comes there and the quarreling persons keep
their quarrel continue or they cause injury in the presence
of the police. If another person was able to escape from the
place, as the accused no.1 was also there, both would have
escaped, but he did not escape and was caught by the
police. Thus, though another person escaped, both the
said police witnesses have not tried to catch him. It is not
such a place where the accused cannot be caught by
chasing him. They do not state anything as to whether
another accused had gone. In these circumstances, it
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cannot be considered both the said witnesses i.e. Police
Inspector and Police Constables have seen the incident
personally. If the version of the animosity is considered,
then also it emerges that the accused no.1 had talked for
long with the complainant and thereafter, he left the place
and thereafter, he came with the weapon. In these
circumstances, other persons or other witnesses would
have heard the version of incident, however, it has not
happened so. The complainant himself states that no talk
took place with him and when he got injured, he saw that
the accused no.1 was there. It is also required to be taken
into consideration that if the intention of the accused no.1
was to cause the death of the injured, though he inflicted
the weapon like axe in the head, there was no grave injury.
He had not tried to cause injury elsewhere. He has not torn
the clothes of the complainant or he has not caused the
injury to the complainant in any other manner. In this
circumstance, there is reason to believe that police might
have reached there after the incident and knowing the
facts from the complainant, the accused would have been
arrested. Thus, as per the say of both these witnesses, a
scuffle or quarrel took place there and therefore, it is
probable that other four to five persons would have
gathered there. Police constable Harshadkumar also
admits in cross examination by Ld. Advocate Mr. Pathak
for the accused no.1 that four to five persons were there
when the incident took place and he does not know as to
who were those four to five persons. I saw the incident
from ten feet away. The injured collapsed and went
unconscious when I saw him. Thus, it is possible that
police party might have reached on the spot after the
injured collapsed and went unconscious. It does not
appear that the police has investigated such four to five
persons, if any, present at the time of incident, who might
have seen the scuffle and who can give the true deposition
and who was the cause of the incident and who and which
kind of injury was caused etc. It is possible that another
person accompanying accused no.1, who escaped might
have caused the injury to the complainant. For the same
reason, he might have left the weapon there and escaped.
It seems no other reason except the same to escape from
there. There is possibility that someone might have some
reason to get the accused no.1 arrest with the weapon. If
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the complainant already knew the accused no.1, there is
possibility that he might be knowing the accused who
escaped. However, immediately after the happening of the
incident, the police constable Harshadkumar reached there
but he did not ask the name of the person escaped. It is
usual that police personnel would ask as to who was the
accused who escaped. However, the police constable
Harshadkumar states that I did not ask the name of
another person who escaped. I do not know as to which
weapon another accused was carrying. Thus, it is not
clarified by the witness as to whether there was any
weapon with the escaping person or not. Similarly, Police
Inspector Shrimali also admits that there is a small turn
before the road of Balabhai Chhaganlal chawl starts, where
the incident happened. It is a labourer area and there is
always running movement of vehcoles as well as persons.
He states that I saw the incident from about 20 feet away.
Three persons were scuffling there. I had not seen any
weapon in the hand of the person who escaped. We did not
chase him. The said person escaped running on the road.
Vehicle cannot be taken on that road. Therefore, we did not
take the vehicle behind him. In fact, the deposition of the
said witness does not appear credible. Sketch of scene of
offense has been produced by the prosecution and looking
to the same, it appears that the said incident is happened
on the road and it does not seem appropriate that it can be
run away from there. One side road goes to Raipur Mall
Cross Roads and another road goes to Green Hotel. Several
houses are there on the opposite side as per the sketch of
Exhibit-36. The scene of offense is on the mid of road.
Whereas, about 13 feet away from the same, there is a
house of Brijpalsinh Kartarsinh and adjacent thereto, there
is a house of Gurubakshsingh Bhagirathsingh. Thereafter,
there is close house beside it and passage to go into chawl.
There is Chandulal Chawl behind it. Thus, several houses
and chawl situated at the said place. It is possible that
there might be movement of persons on the road. Despite
that, it does not appear that any such witness has seen the
incident. Same way, though there are the houses of
Brijpalsinh Kartarsinh and Gurubakshsingh
Bhagirathsingh on the opposite side, such neutral
witnesses have not produced before the court. It is not the
case of the prosecution that they were not present at the
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time of incident and it is also not case of the prosecution
there houses were closed. The contention of the defense
cannot be discarded that there are sufficient reasons to
believe that prosecution has hidden the fact by not
examining the said important witnesses and other
witnesses residing in surrounding and who were on the
road at that time. As per the deposition of both the said
police witnesses, it is exaggerated to believe that there was
no other person. It is exaggerated to believe that there was
no movement of vehicles between half past eight and
quarter to nine o'clock in the night. Police Inspector Mr.
Shrimiali has admitted in his cross examination that there
is always movement of public at that place. Despite that no
such witness has been examined, which is noteworthy.
20) The police have recovered the clothes and sent the
same, along with a Dispatch Note, to the Forensic Science
Laboratory. A receipt thereof is produced at Exhibit 34 in
the present case. The report thereof is produced at Exhibit
35, wherein human blood (B Group) is found to be present
on the shirt and the trousers. However, as discussed
above, the Prosecution could not establish that the
accused was armed with the Axe, recovered as Sample No.
3, and the complainant was caused injuries with the axe.
Therefore, the evidence as to the axe recovered qua the
Muddamal and complainant's blood is not reliable and
therefore, not admissible.
21) In the same manner, while producing the
Panchnama of Place of Offense at Mark 7/5, the
Prosecution has examined the Pancha Witness Budhaji
Bhikhaji Thakor at Exhibit 20. But, the witness states
that, "it is not true that P.I. Shri Shrimali had shown him
and the other Pancha Witness the place of offense."
Though the Panchnama at Mark 7/5 has been produced
on record, the witness only admits to have signed at the
bottom. Thus, from the deposition of this witness, no fact
is established that the Police had drawn the Panchnama of
Place of Offense in the presence of these two Pancha
Witnesses. With regard to the other witnesses, the
depositions of P.S.O. Triveniprasad Jagdishprasad Tiwari
and the Police Inspector Shri Chandansinh Hadmatsing
Chauhan, who had received the complaint, have been
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recorded at Exhibit 22 and Exhibit 31, respectively. As per
the testimony of Shri Tiwari, the complaint which was
received by P.I. Shri Chauhan was assigned to him after an
offense was registered and it was he who made an entry in
the Station Diary in this regard. It was Shri Tiwari who has
produced the Report under Section 157, along with the
complaint, at Exhibit 23. Shri Tiwari admits that earlier,
he was assigned a Telephone Vardhi from Shardaben
Hospital at 21:30 hours, a copy of which is produced at
Exhibit 24 in the present case. As per Exhibit 24, Police
Constable Khodabhai had dictated the Vardhi at the
instance of the R.M.O., Shardaben Hospital and such was
the fact about injury caused to the complainant. However,
neither any Medical Officer from Shardaben Hospital has
been produced as a witness nor any certificate in this
regard has been produced in the present case. In the Cross
Examination, it emerged that it was Dr. Modi, who was the
Medical Officer at the Civil Hopsital, who had examined
Dhansagar Dudhnath Tiwari who had been caused
injuries. Thus, as stated by the Complainant, he was taken
to the Civil Hospital where Dr. Modi administered
treatment to him. Whereas, as deposed by the P.S.O., he
was assigned a Telephone Vardhi from Shardaben
Hospital, however, the Investigating Officer does not inform
that not any Medical Officer from Shardaben Hospital have
deposed in the present case or their statements have been
recorded or not. As deposed by the Investigating Officer
Shri Chauhan, the injured was transferred to the Civil
Hospital on the instructions of the Doctor at Shardaben
Hospital and a Yadi for recording a Dying Declaration was
drawn on the Executive Magistrate. Police Inspector Shri
Chauhan deposes that the axe produced by Police
Constable Rameshbhai was recovered after drawing a
detailed Panchnama thereof. The axe was recovered by him
from the possession of the accused. However, Police
Constable Rameshbhai has not been examined as a
witness in the present case. Thus, no evidence has been
established as to the fact that the axe was recovered from
the Accused No.1. With regard to the place of offense,
P.S.O. Shri Tiwari states that, "as per the Vardhi, the place
of incident was situated at Sukivadi, Nr. Trikam Mill."
There is no mention in the Vardhi that the incident took
place opposite Balabhai Chhaganbhai Ni Chali. The
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Panchnama of Place of Offense, produced at Mark 7/5,
was drawn by the Investigating Officer Shri Chauhan in
presence of the Pancha Witnesses and as stated by him,
the place of incident is situated on the road opposite
Balabhai Chhaganbhai Ni Chali. However, the Panchnama
has not been established. In the same manner, the
Panchnama of recovery of weapon and clothes from the
accused Bharat Patiram, produced at Mark 7/6, has not
been established.
22) As deposed by Shri Chauhan, he had recorded the
complaint of Dhansagar Dudhnath Tiwari by visiting him
at Shardaben Hospital. But, during the Cross
Examination, he states that, "when I reached the hospital,
P.S.I. Shri Shrimali was present with the complainant.
Thus, it was P.S.I. Shrimali who approached the injured
first. Under such circumstances, if Shri Shrimali had
questioned the injured complainant, facts thereof are
worth knowing. But, it does not appear that he had made
any note thereof. Under such circumstances, if any note
had been made by him, it is deemed F.I.R., which is
required to be produced before the Court, but the same
has not been produced. As deposed by this witness,
neither any article has been recovered from the place of
offense nor any blood marks were found there. Not any
other evidence has been recovered from the place of offense
which is consistent with the facts on hand. Not any article
such as a chappal (footware) of the accused or of the
complainant was recovered therefrom. In the same
manner, though the houses of Gurubakshsing
Bhagirathsing and Bijpal Kartarsingh are situated opposite
the place of offense, their names have not been included in
the Charge-Sheet.
23) With regard to the Accused No.2, the Investigating
Officer Shri Chauhan admits in his Cross Examination
that his name is not mentioned in the complaint. He
admits that the Accused No.2 was not armed with any
weapon either before the offense or after it. There is no
evidence to the fact that the accused caused any injury to
the victim. There is no evidence even to the fact that the
accused had an altercation with the victim and the
accused threatened the injured. The accused No.2
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Shobhrajan had caught hold of the complainant as stated
by P.I. Shri Chauhan, but the complainant has not
deposed so. The other two witnesses, i.e. Police Constable
Harshadkumar and Police Inspector Shrimali, do not state
that the accused in present case had caused injuries to the
complainant. Instead, they only state that the other person
had fled. Thus, though there is no iota of evidence against
the accused no.2, he has been arraigned in the Charge-
Sheet which is not appropriate.
24) Thus, in the present case, the F.I.R. is suspicious,
there is no mention about the accused No.2 therein, the
complainant has neither stated about any altercation
having taken place nor stated about having been
threatened, but states that he had been caused injury from
backside. Whereas, the other two eye-witnesses have
stated facts as to scuffle and altercation having taken place
at the time of incident. No blood marks have been found at
the place of offense. The evidence as to place of incident is
contradictory. There is no evidence as to recovery of any
weapon from the accused. The evidence as to production of
weapon by the accused has not been established. The
evidence as to recovery of the clothes of complainant is not
established. The facts as to drawing of the Panchnama of
place of offense by the Police is not established. As per the
F.S.L. Report, no blood is found on the axe recovered by
the police. Police Constable Rameshbhai Vashrambhai,
though he was present at the time of incident, he has not
been examined. The persons residing in the neighborhood
of the place of incident have not been examined as
witnesses. Neither their names have been included in the
Charge-Sheet. Many such facts raise suspicion on the
Prosecution's case. Under such circumstances, some of the
Judgments cited by the Defense are irrefutable. As per
1997 (3) Crime 232 SC, State of U.P. Vs Bhagwanbhai and
Ors, if the testimony of eye-witnesses completely differs the
F.I.R. and there is suspicion with regard to place of
offense, such evidence is not admissible. As held by the
High Court of Rajasthan in Ganga Vs The State, reported
at 1966 Criminal Law Journal 134, an offense under
Section 307 of I.P.C. cannot be made out where causing of
a grave injury is not established and an accused cannot be
convicted therefor. But, he can be convicted for an offense
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under Section 324 of I.P.C. However, in the case on hand,
the testimonies of the witnesses are contradicting, the
evidence produced is insufficient and unreliable. Under
such circumstances, the accused cannot be convicted and
therefore, Issue No.1 is determined affirmatively and Issue
No. 2 to 5 have been determined in negative and the
following order is passed."
11. Sum and substance of the discussion in the preceding
paragraphs, if we peruse material on record and conclusion
arrived by the learned Sessions Court is that version of the
prosecution appears to be contrary amongst material witnesses
as to the place, time and role attributed to the respondents, so
also use of weapon and the way in which alleged offence took
place. In continuance of it, it is apt to note that initial version of
the complainant alleging sole accused alleged to have given blow
with iron made axe near premises of the complainant, where
prosecution witnesses - police personnel alleged to have arrived
and caught respondent no.2 with so called weapon used therein
and complainant was rushed to hospital. It further transpires
that implication of accused no.2 has been brought under
mysterious circumstances without first disclosing the same at
initial stage who alleged to have fled from place of incident on
sensing arrival of police personnel, however, no evidence to
substantiate aforesaid action appears from the circumstances
emerging from record. On the contrary, the complainant at initial
stage appears to be so silent as to the involvement of respondent
no.2 - accused. Not only that it transpires from the deposition of
complainant who alleged to have stated that somebody blowed
sharp weapon on the head, however, turning back complainant
found respondents therein. Except this allegation, nothing more
is alleged against the respondents.
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12. It further transpires as concluded by learned Competent
Court that no blood stains were found from place of incident
which otherwise appears to have been changed as prosecution
seems to have failed to establish exact place of incident as it is
contrary in testimony of the material witnesses as well as no
blood stains having been found from questioned vehicle alleged
to have been used in the crime in question.
13. It further transpires that recovery of the weapon also
creates doubt and suspicion as no witness appears to have
supported the recovery as well as panchnama drawn by
Investigating Officer. Apart from it, even considering deposition
of Doctor who has opined that injury received by the
complainant in question is simple injury and cannot be
considered as fatal which may result in death, if treatment is not
given in time, is also ground to consider the way in which
allegations made therein fulfill required criteria so as to attract
ingredients of section 307 of IPC, more so when material witness
as surfaced from police investigation papers viz. Khodabhai
found present has not been examined by the prosecution. Thus,
non examination of material witness present at the scene of
offence also spread doubt on the prosecution version.
14. In view of aforesaid material animosity between two groups
seems to be core on the basis of which alleged incident took
place, however, considering contradictory version as to the
incident seems to have been projected as one, severe and rare
incident which also is not substantiated by the witness. On the
contrary there appears to be huge contradiction in the version
and claim amongst the witnesses.
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15. 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 trial Court
are perverse, contrary to the material on record, palpably wrong,
manifestly erroneous or demonstrably unsustainable. In the
instant case, the learned APP for the applicant has not been able
to point out to us as to how the findings recorded by the learned
trial Court are perverse, contrary to material on record, palpably
wrong, manifestly erroneous or demonstrably unsustainable.
16. In the case of Bhupatbhai Bachubhai Chavda & Anr. v.
State of Gujarat [2024 INSC 295], Hon'ble Supreme Court has
held as under :-
"6. It is true that while deciding an appeal against
acquittal, the Appellate Court has to reappreciate the
evidence. After re-appreciating the evidence, the first
question that needs to be answered by the Appellate Court
is whether the view taken by the Trial Court was a
plausible view that could have been taken based on
evidence on record. Perusal of the impugned judgment of
the High Court shows that this question has not been
adverted to. Appellate Court can interfere with the order of
acquittal only if it is satisfied after reappreciating the
evidence that the only possible conclusion was that the
guilt of the accused had been established beyond a
reasonable doubt. The Appellate Court cannot overturn
order of acquittal only on the ground that another view is
possible. In other words, the judgment of acquittal must be
found to be perverse. Unless the Appellate Court records
such a finding, no interference can be made with the order
of acquittal. The High Court has ignored the well-settled
principle that an order of acquittal further strengthens the
presumption of innocence of the accused. After having
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perused the judgment, we find that the High Court has not
addressed itself on the main question.
7. The second error the High Court committed is found in
paragraph 23 of the impugned judgment. The High Court
has gone to the extent of recording a finding that the
appellants have failed to adduce evidence in their support,
failed to examine the defence witness and failed to
establish falsity of the prosecution's version. This concept
of the burden of proof is entirely wrong. Unless, under the
relevant penal statute, there is a negative burden put on
the accused or there is a reverse onus clause, the accused
is not required to discharge any burden. In a case where
there is a statutory presumption, after the prosecution
discharges initial burden, the burden of rebuttal may shift
on the accused. In the absence of the statutory provisions
as above, in this case, the burden was on the prosecution
to prove the guilt of the accused beyond a reasonable
doubt. Therefore, the High Court's finding on the burden of
proof is completely erroneous. It is contrary to the law of
the land.
17. It is to be observed that 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.
18. 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.
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19. In view of the above and for the reasons stated above,
present Criminal Appeal deserves to be dismissed and is
accordingly dismissed.
(VAIBHAVI D. NANAVATI,J)
(R. T. VACHHANI, J)
SATISH
