JUDGMENT M.K. Mittal, J.
1. This appeal has been filed by Smt. Usha Devi against the judgment and order dated 20.3.2002 passed by Sri Mehtab Ahmad, A.C.J.M., Court No. 10 Ballia in criminal case no. 1746 of 2001 whereby he acquitted the accused Surendra Singh, opposite party No. 2 under Sections 405, 498A IPC as he did not find him guilty thereunder.
2. Brief facts of the case are that Smt. Usha Devi claiming herself to be legally weded second wife of the accused filed a first information report on 17.3.1987 against the accused Surendra Nath Singh and his bhabhi Smt. Savitri Devi. In the first information report she alleged that she was married with the accused Surendra Kumar Singh resident of Piprakalan on 30.5.1983. After marriage she went with the accused and then she came to know that accused earlier married Smt. Shail Kumari who was turned out of the house and was alive Accused was also having illicit relation with his bhabhi Smt. Savitri Devi and had concealed the fact of furst marriage, She also gave birth to a daughter in November, 1984 but alter 15 days her daughter was taken by the accused and was killed and she was also turned out of the house. After some time the accused came to her house and accepted his mistake and prayed for forgiveness and them her brother and mother allowed her to go. She lived with the accused and gave birth to a son Raju. But again in collusion with Smt. Savitn Devi accused planned to kill her by giving some poisonous injection. However she overheard that accused had been planning to take her to Distinct Hospital, Ballia for this purpose. When she was asked to go to hospital she refused but she was beaten and her clothes were also set on fire. However, the neighboured came and saved her and thereafter she came to her Maika. A case was registered at crime no 435 of 1987 under Section 498. 506 IPC and after investigation charge sheet was submitted against the accused under Sections 494, 495, 506 IPC. But a prayer was made to cancel the charge sheet and the same was Cancelled on 11.2.1988. However, the complainant was legally advised that she should have filed a complaint tinder Section 495 PC and thereafter she filed a complaint in the Court of C.J.M. on 25.8.1988. She made the allegation as referred above and prayed that accused be punished.
3. The complainant was examined under Section 200 Cr.P.C. and her witness was also examined and thereafter the accused and his bhabhi were summoned. It appears that Smt. Savitri Devi filed a revision against her summoning order and the same was allowed and the case proceeded against the accused Surendra Kamar Singh and the charge was framed against him on 3.7. 1995 by the learned Magistrate. The accused pleaded not guilty and claimed trial.
4. In support of its case the prosecution examined Smt. Usha Devi the complainant as P.W-1 and her brother Balkeshwar Nath Singh. P.W.-2, witness Indradeo as PAV.-3. witness Moti Lal Mishra as P.W. 4 and constable Bajranj Prasad P.W. 5. Constable Bajranj Prasad proved the fact that the case was registered in the general diary at crime No. 435 of 1987. Check report Lx-Ka 1 was prepared. Case was registered in the general diary and its copy is Ex-Ka-2. Prosecution also filed documentary evidence in support of its case.
5. Accused was examined under Section 313 Cr.P.C. and he denied that Shail Kumari was his wife. He also denied having married Smt. Usha Devi. According to him he had given an application against the complainant and her brother and mother under Sections 323, 324, 332 IPC and in order to avoid that case this complaint was filed. He also stated that the witnesses had wrongly deposed against him. After the complainant filed the documentary evidence including the certified copy of the divorce suit filed by the accused against Smt. Shail Kumari, he was again examined under Section 313 Cr.P.C. and specific question was put to him that in the Court of Civil Judge, Ballia Suit No. 35 of 1983 Surendra Kumar Singh v. Shail Kumari was fled b him for divoree where in the divorce petition he had stated that his marriage with Shail Kumari was performed according to Hindu rites in May 1971 and that case was dismissed by the Addl. Sessions Judge on 7.12.1983. In reply to this question the accused stated that the marriage with Snail Kumari was not according to (sic) and (sic) method. But he did not remember about the case. A further question was put to him that in the marriage petition he had mentioned that marriage had taken place according to Hindu rites and what he had to say in that regard. He replied that he had to say nothing. Accused did not adduce any evidence.
6. Learned Trial Court after considering the evidence of the parties came to the conclusion that the prosecution had failed to establish that the first marriage was performed according to Hindu rites and that the admission as made by the accused were not sufficient, in view of the judgments as rendered in the case of Smt. Priya Bala Ghosh v. Surendra Chandra Ghosh AIR, 1971 SC 1153, Kawalram v. State of Himanchal Pradesh and also a judgment in the case of Godawari v. State of Maharashtra 1985, Cr. L.J. 1972 as given by the Bombay High. Court and on that basis concluded that the accused was not liable to be punished under Section 495 IPC. He also held that the prosecution had failed to show that the accused had concealed the fact of the first marriage. Learned Magistrate also held that the complainant had failed to establish that the accused had given any harassment to her and that any offence was committed by the accused under Section 498A IPC. Consequently he acquitted the accused of the two charges as framed against him. Feeling aggrieved this appeal has been filed by the complainant.
7. I have heard Sri R. N. Rai, learned Counsel for the appellant and Sri V.B. Srivastava. learned senior counsel assisted by Sri Sri. R. Kumar learned Counsel for the accused and Sri R.C. Mishra (sic) learned A.G.A. and have perused the Trial Court record.
8. Learned Counsel for the appellant complainant has contended that the accused had earlier entered into a legal marriage with Smt. Shail Kumari and this fact was concealed at the time of her marriage with the accusd. He has also contnded that the complainant had also proved that the marriage of the accused with the complainant was a legal marriage and that this marriage was performed when first marriage was still subsisting and therefore the accused had committed the offence as punishable under Section 495 IPC. Learned Counsel for the appellant complainant has further contended that accused had harassed and ill treated the complainant and had turned her out of the house and therefore was also liable to be punished under Section 498A IPC, but the learned Magistrate wrongly acquitted the accused of both the charges and that the findings as recorded by the learned Magistrate are perverse and are liable to be set aside. According to him the appeal is liable to be allowed and the accused deserves punishment.
9. Against it learned Counsel for the accused opposite party No. 2 has contended that learned Trial Court has rightly held that the prosecution could not establish that the alleged marriage with Smt. Shall Kumari was legally performed marriage and that the admission if any made by the accused is not sufficient to make the marriage a legal marriage. He has also contended that the learned Magistrate has rightly held that the prosecution failed to establish any harassment of the complainant made by the accused and that he rightly acquitted the accused and the appeal is liable to be dismissed.
10. In this connection, it will not useful to quote Section 494 and 495 IPC. Section 494 provides that whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
11. Exception:- This section does not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years and shall not have been heard by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge. "
12. Section 495 IPC is aggravated form of Section 494 IPC. Section 495 IPC reads as under:
Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
13. The conjoint reading of these two sections shows that if a person has a husband or wife living and marries in any case in which such marriage is void by reason of its taking place during the life time of such husband or wife commits the offence of bigamy. The offence becomes more serious if he/she conceals the fact of the earlier marriage.
14. The exceptions are that where the marriage of such husband or wife had been declared void by the Court of competent jurisdiction and where there is continual absence of one of the parties for the space of seven years and the spouse has not been heard of by the other party as alive within that time provided that the person contracting such subsequent marriage informs the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.
15. In the instant case, according to the complainant the accused performed a legal marriage with second wife in the year 1983 according to Hindu rites whereas he had already a living wife with whom he had contracted the legal marriage in the year 1971 and against whom he had also filed a suit for divorce which was dismissed on 7.12.1983 that is after her marriage with the appellant and the fact of the earlier marriage was also concealed from her. In order to appreciate the respective contentions of the parties it will be relevant to refer the statements as made by the witnesses.
16. Suit. Usha Devi P.W.-1 has stated that she was married to accused Surendra Nath Singh who was working as clerk in the District Court, Ballia on 30.5,1983 according to Hindu rites. On the second day of her marriage after bidai she went to Piparakalan with the accused and lived as his wife and there she came to know that accused had earlier married Shall Kumari who was alive. She was beaten and was turned out of the house by the accused and was living in her maika. She also came to know that the accused had illicit relation with his Bhabhi Savitri Devi who was living with the accused and they had colluded and concealed the fact of the first marriage from her. She gave birth to a daughter in November, 1984 but after 15 days of her birth the accused snatched her daughter and killed her and also turned her out from the house. After some days, accused came to her mayka and asked for forgiveness and assured that he would not harass her in future. She came with the accused and lived with him but the accused continued to harass her. However, she tolerated and continued to live with him. She also gave birth to a son Raju who is with her. Accused conspired with Smt. Savitri Devi to kill her by giving some poisonous substance. She over heard that talk and did not agree to go to the Hospital with the accused. At this she was beaten and set on fire. But at her noise ladies of the neighbourhood came and saved her. In cross examination she stated that prior to this incident the accused had not filed any case against her, her brother and mother but she also stated that in a case they had been released on bail. When she had come to the court with her ailing son and had asked for money from Surendra (appellant) marpeet had taken place. She was living in her mayka for quite some time, prior to this incident. Her brother Baleshwar Nath Singh was not doing any job. After about a month of this marpeet she had given an application to the superintendent of Police. Her father died prior to her marriage. Her brother had come to the house of the accused for her marriage settlement. Prior to the marriage she had not met Surendra Kumar Singh. Accused lived with his bhabhi in Ballia and she went to live at that place. By burning she had received wounds on her body. She got herself treated but did not obtain any injury report. She could not tell the names of the persons who had come to save her. When police did not take any action she filed the complaint. On the date of incident Surendra Kumar and bhabhi were at Bahadurpur in Ballia. She denied the suggestion that in order to avoid the case of the accused she field this complaint.
17. P.W.-2 Baleshwar Nath Singh who is brother of the complainant stated that the marriage of his sister was settled in 1983 with the accused. He came to know on enquiry that Surendra Kumar was not married and was a man of good character The marriage took place on 30.5.1983 according to Hindu rites. On the next date his sister went with the accused on bidai. After some days of the marriage his sister called him at Piparakala and told that Surendra Nath Singh was a married person and was also having illicit relation with his bhabhi Savitri Devi and that the fact of her earlier marriage was concealed form them. In 1984 she was turned out of the house by the accused. The daughter was also killed by the accused. After few days accused came and assured that he would not harass her and also prayed for forgiveness for his mistake. His sister went with the accused but her harassment was restarted. However she tolerated and lived there and gave birth to a son Raju who is at present living with his sister. Accused had conspired with his bhabhi to kill his sister but she over heard their plan and when she refused to go to hospital she was set on fire but was saved by the ladies of the neighbourhood. Thereafter she came to his house. Report was also given to the police. Surendra Kumar is working as clerk in Civil Court Ballia. In cross examination he has stated that he never worked as Assistant to Surendra Kumar Singh in the Court. He had gone to the house of Surendra for settlement of the marriage of his sister and at that time he knew that Surendra was working as clerk in the civil court. At the time of marriage of Surendra Kumar, Surendra's father was not alive. A matter was enquired against him for the theft ol a file in the Civil Court prior to this case. From the date of marriage till this incident, he had no complaint against Surendra Kumar. However, he denied the suggestion that after Surendra Kumar had filed a case against him, he, his sister and mother, were aggrieved with Surendra Kumar. He also stated that in the case filed by Surendra Kumar they have been acquitted. He also denied that in order to pressurize the accused he made his sister file this case.
18. P.W.-3 Indradeo has stated on oath that Usha Devi and Surendra Kumar were married on 30.5.1983 according to Hindu rites at the house of Baleshwar Nath Singh. He was present at that time and Moti Mishra was the 'purohit' and Sakhi Chandra was 'hazzam'. This marriage was performed according to Hindu rites. On the second day of marriage bidai had taken place. In cross examination he stated that it was summer season when the marriage took place. One purohit was also of the village of Surendra Kumar but he does not know his name. He had earlier visited Piparakalan several times because he had relationship with Bhrigu Nath and, Kedar Singh. Lagnapatrika was prepared by the purohits of both side.
19. Moti Lal Mishra P.W.-4 was purohit at the time of marriage and the stated that Usha was married with Surendra Singh of (sic) in village Belhari at the house of Baleshwar. According to him (sic). In cross examination, he staled that he did not go in the 'agua' of the marriage and he did not receive any summon for coming to the Court.
20. Now it has to be seen if the accused has committed the offence of bigamy. Like all criminal offences, bigamy requires mens rea for conviction. Bigamy without mens rea is no offence. In order to establish the case against a person under Section 494 IPC it has to be proved as held in the case of L. Obulamma v. L. Venkat Reddy and Ors. that (i) the complainant had been validly married to the accused (ii) the accused contracted the second marriage during the subsistence of first marriage (iii) that both the marriages were valid and strictly according to law governing the parties.
21. The validity of marriage in case of Hindus has to be determines according to the provisions of Hindu Marriage. Act (Act No. 25 of 1955). There must be at the time of second marriage a previous valid and subsisting marriage. If the first marriage is not a valid marriage no offence is committed by contracting the second marriage. The words "such marriage is void by reason of it taking place during the life of such husband or wife" in the collocation of the words "whoever having a husband or wife living marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife" are important.
22. For a valid Hindu marriage there are two ceremonies namely (1) invocation before the sacred fire and (ii) Saptapadi, i.e. taking of seven steps by the bridegroom and bride before the sacred fire. A marriage may be completed by performing certain other ceremonies other than those above where it is allowed by the custom of the case to which the parties belong. When the parties do not rely on any custom of the caste according to which by performing certain other ceremonies a valid marriage can take place between the parties proof of saptapadi and Homam in respect of the impugned marriage is an essential prerequisite for conviction under Section 494 IPC.
23. In the instant case, it has to be seen whether the prosecution was successful in establishing that the accused had first valid marriage and that during the subsistence of that marriage he contracted a second valid marriage with the complainant. In the instant case the exception as referred above are not applicable. As far as the second marriage is concerned, there are statements of the witnesses Suit, Usha Devi, Baleshwar Nath Singh, Indradeo and Moti Lal Mishra, P.W.-1 to P.W.-4 and they have stated that the marriage was performed between the complainant and the accused on 30.5.1983 according to Hindu rites The witness Moti Lal who was the purohit at the time of this marriage has specifically stated that the marriage was performed according to (sic). This statement of the witness Moti Lal has not been challenged in cross examination. Rather no suggestion has been given to any of the witnesses challenging the validity of the marriage between the complainant and the accused as was performed on 30.5.1983. Therefore there is sufficient evidence to establish that the second marriage was performed according to Hindu rites and was a validly performed marriage. Learned Trial Court has also correctly held that the second marriage was legally performed.
24. Now it is to be considered whether the first marriage between the accused and Smt. Snail Kumari was also validly performed marriage and whether the factum of first marriage was concealed by the accused from the complainant. In this connection, Smt. Usha Devi has stated that after her marriage when she came with the accused she came to know after few days that accused had earlier married Smt. Shail Kumari and she was alive but was turned out from the house by the accused. No cross examination has been made to this witness in this reference. Baleshwar Nath Singh has stated that he was told by his sister about the marriage between the accused and Smt. Shail Kumari.
25. Learned Counsel for the complainant has contended that the marriage between the accused and Smt. Shail Kumari was valid marriage and was performed according to Hindu rites and that this fact was stated by the accused in his divorce petition No. 35 of 1983 filed by him on 8.4.1983. In para (f) of this petition it has been mentioned that the marriage with Smt. Shail Kumari was performed according to Hindu rites. Accused filed an application for dismissal of his divorce petition and the same was allowed on 7.12.1983 and the petition was dismissed with special costs to Smt. Shail Kumari. When the accused was examined under Section 313 Cr.P.C, a question was put to him that in his divorce petition he had stated that the marriage was according to Hindu Dharamshastra and in reply he stated that it was not according to Saptapadi and Homam. But when he was further enquired that in the petition it was mentioned that the marriage was performed according to Hindu Dharamshastra he did not say anything. As mentioned earlier two essential requisites for a valid marriage are Saptapadi and Homam. According to the learned Counsel for the complainant this statement of the accused shows that the first marriage was performed according to Hindu rites.
26. Learned Counsel for the accused has contended that the prosecution should have specifically proved that the first marriage was performed according to Hindu rites i.e. two requisite of Saptapadi and Homam were gone through and if there is any admission by the accused, same is not sufficient to establish that the marriage was validly performed and on that basis accused cannot be convicted. In order to bring home the offence of bigamy, prosecution is required to establish that both the marriages were legally performed i.e. all the procedure as required under the law were followed. In the instant ease, parties are Hindu and the marriage should have been performed by going through ceremonies of Saptapadi and Homam. Regarding the first marriage, which according to prosecution, accused had with Smt. Shail Kumari, prosecution has not given any evidence to show that it was performed according to the legal requirement. In the complaint no averment has been made to that effect. The witness Smt. Usha Devi also did not make any averment in her statement on oath to that effect. Prosecution in order to substantiate its case regarding the first marriage of the accused relied on the admission made by the accused in the proceedings under Section 125 Cr.P.C. and the divorce suit which were between the accused and his first wife Smt. Shail Kumari. But no liability can be fastened for the offence of bigamy on the basis of admission if any, made by the accused.
27. Admission is a formidable evidence in civil proceedings and clinches the issue unless explained or shown to be erroneous. But similar is not the case with criminal prosecution. In the case of Smt. Priya Bala Ghosh (supra) and also in the case of S. Nagalingam v. Sivagami , it has been held by the Hon'ble Apex Court that in order to prove the offence of bigamy the validity of marriage is required to be proved by prosecution by satisfactory evidence. Although in those matters second marriage of the parties was in question. But the same standard will apply to the case of first marriage also. In the case of Lingari Obulamma (supra), it has been held that unless Datta Homa and Saptapadi are performed the marriage is void in the eye of law. In the case of Ravindranath Dutt v. State of West Bengal , it was held that for conviction of bigamy the first valid marriage of the accused must be proved. Again in the case of K. Ramchandru Rao v. K. Sita Devi 1979 (1) APIJ 339, it has been held that admission of marriage of the accused with the complainant is no evidence or proof of first marriage in a case of bigamy. Therefore in this case the prosecution can not get any benefit out of the admission if any, made by the accused regarding the validity of his first marriage. Thus I come to the conclusion that prosecution had failed to establish that first marriage of the accused with Smt. Shail Kumari was performed according to the legal requirement and the finding as recorded by the learned. Trial Court is correct.
28. Learned Counsel for the appellant complainant also contended that the accused concealed the fact of first marriage at the time the second marriage was performed with the appellant. Learned Counsel for the accused argued that at the time the marriage was settled Baleshwar Nath Singh had the knowledge about all the facts. In this connection, the appellant Smt. Usha Devi has stated that when she went after marriage to her Sasural she came to know after few days that the accused had already married with Smt. Shail Kumari and had turned her out of the house. The brother of the appellant also states that he was called by his sister and was given that information. According to learned Counsel for the opposite party the brother of the complainant and the complainant had the knowledge about the fact of the first marriage of the accused. The brother of the complainant has stated, that Kedar Singh son of his uncle lived in Piparakalan village where the sasural of the complainant is situate. Kedar Singh was the mediator and in the circumstances it cannot be presumed that the complainant had no knowledge about the first marriage of the accused. Witness P.W.-2 has not made any statement that the accused did not tell him about his first marriage, In this case it has come in evidence that inspite of the fact that the complainant came to know about the first marriage of the accused, she continued to live with the accused and a girl was born to her. Thereafter there was some dispute and she was sent to maika but when accused asked for forgiveness she went with the accused and lived with him and gave birth to a son named Raju. Section 17 of the Hindu Marriage Act provides for punishment for bigamy as provided under Sections 494, 495 IPC. Section 12(1)(c) of the Hindu Marriage Act. provides that if the consent of the petitioner or the guardian in the marriage has been obtained by fraud an action can be brought for declaring the marriage voidable within one year of the knowledge of such fraud. In the instant case, complainant did not choose to get the marriage declared as voidable and continued to live with the accused. It shows that the complainant had the knowledge of first marriage of the accused otherwise she would have not lived with the accused after she came to know that fact. Learned Trial Court has rightly held that the complainant could not prove that the accused had concealed the fact of his first marriage. In the circumstances, the prosecution has failed to establish its case against: the accused under Section 495 IPS and the learned Trial Court has rightly acquitted the accused of that offence and that finding needs no interference.
29. Learned Counsel for the appellant has further contended that accused ill-treated and harassed her. She was also beaten and burn injuries were also caused to her and was turned out of the house and it amounts to cruelty under Section 498A IPC. In this connection, statement of the appellant complainant is important. She has not given any date when she was ill treated or harassed or was burnt by the accused either in the complaint or in the statement on oath. This is important. According to the complainant she was living for quite some time in her mayka and that when she had gone to the Court and had demanded money from the accused for the treatment of her son there was marpect and after one month of that marpeet the gave an application to the superintendent of police and thereafter these proceedings were initiated. She earlier denied that the accused had filed any case against her, her brother and mother. But subsequently admitted that they were released on bail in the matter. She has also stated that the accused had burnt her clothes and she had received burn injuries and was also treated for the same bur she did not get any medical certificate prepared. According to her neighbourers had come to rescue her and she was saved but name of any such neigbour was neither disclosed nor such neighbour was examined in the Court. Complainant also stated that when the accused and his Bhabhi with. whom he had illicit relation were talking about taking her to District Hospital, Ballia so that some poisonous substance could be given to her she had overheard the talks and she refused to go to hospital. But even no date of this incident has been given. She has also stated that on the date of incident accused and Bhauji were at Bahadurpur, Ballia. If it was so, no incident could have been caused by them at the village Piparakalan.
30. Learned Counsel for the accused has contended that according to Baleshwar P.W.-2 accused Surendra had lodged report against them on 28.7.2007 and the first information report in the matter was lodged by the complainant thereafter on. 17.8.1987 as a counter blast. In the circumstances and the evidence as has come oh record contention of learned Counsel for the accused opposite party has weight. Thus the complainant could not establish by cogent evidence that the accused ill treated and harassed her and turned her out of the house.
31. Learned Counsel for the appellant has contended 'hat because of ill-treatment given by the accused she has been forced to live separately and it also amounts to cruelty and the accused is liable to be punished under Section 498A IPC. It will be relevant to peruse Section 498A IPC, which reads as under:
Section 498A: Husband or relative of husband of a woman subjecting her to cruelty: Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation:-For the purpose of this section, "cruelty" means:
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to hereto meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
32. According to this provision if the husband or any of the relative subjects the wife to cruelty as defined in this section, he can be held liable. But to attract the offence under Section 498A IPC, it must be established that the cruelty or harassment to wife was to force her to cause bodily injury to herself or to commit suicide of the harassment was to compel her to fulfil the illegal demands for dowry. However, it is not every type of harassment or cruelty that attracts this section. In any event the wilful act or conduct ought to be the proximate cause in order to bring home the charge under Section 498A and not de hors the same.
33. In the instant case, there is no allegation that the harassment was on account of any demand being made by the accused. Therefore explanation (b) is not applicable. There is also no allegation that the complainant attempted to do any of such acts as mentioned in clause (a) on account of alleged harassment. Therefore explanation -(a) is also not applicable. Even the period of harassment has not been given. Therefore it cannot be said that the appellant complainant is living separately on account of harassment given by the accused. Unless the harassment is specifically established the accused can not be convicted under Section 498A IPC. Therefore the acquittal of the accused under Section 498A IPC by the learned Trial Court is correct.
34. While considering the powers of the appellate court in appeal against acquittal, Hon'ble Apex Court in the case of State of Goa v. Sanjay Thakran and Anr. (2007) 2 SCC (cri) 162 held that the appellate court can review the evidence and interfere with the order of acquittal only if the approach of lower court is vitiated by some manifest illegality or the decision is perverse and the Court has committed manifest error of law and ignored the material evidence on record.
35. In a recent case of Chandrappa and Ors. v. State of Karnataka (2007) 2 SCC (cri) 325, Hon'ble Apex Court has laid down the following general principles regarding powers of the appellate court while dealing with an appeal against the order of acquittal as under:
(i) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(ii) The code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusions, both on questions of fact and of law.
(iii) Various expressions, such as "substantial and compelling reasons" "good and sufficient grounds". "'very strong circumstances", "distorted conclusions" "glaring mistakes", etc are not intended to curtai extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(iv) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused, Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his (sic) the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(v) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should (sic) disturb the finding of acquittal recorded by the Trial Court.
35. In the circumstances, learned Trial Court has based the findings on the evidence on record and the same are reasonable and are not perverse and there is no ground to interfere in the finding as recorded by the learned Trial Court and the appeal is liable to be dismissed.
36. The appeal is hereby dismissed.