Gujarat High Court Case Information System Print CR.MA/1710/[SECTION]0 5/ 9 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 1710 of [SECTION]0 In CRIMINAL APPEAL No. 313 of [SECTION]0 [ENTITY] Versus [ENTITY] & ANR Appearance : MR [ENTITY], APP for Applicant CORAM : HONOURABLE MR.JUSTICE [ENTITY] and HONOURABLE MR.JUSTICE [ENTITY] Date : 30/07/[SECTION]0 ORAL ORDER
(Per : HONOURABLE MR.JUSTICE [ENTITY]) 1 By means of filing this Application under [SECTION] [ACT] ( the Code for short), the Applicant [ENTITY] has prayed to grant leave to file Criminal Appeal No. 313 of [SECTION]0, which is directed against the judgment and order dated 17.11.2009, rendered in [CASE NUMBER], by the learned Presiding Officer, Fast Track Court No.3, Morbi, acquitting the Respondents accused of the offences punishable under [SECTION], [SECTION] read with [SECTION] of the [ACT]( [ACT] for short) and [SECTION] of the [ACT].
2 The prosecution case in nutshell is that:
2.1 The respondent No.1 [ENTITY] as well as deceased [ENTITY] were doing agricultural labour work. He suspected that deceased [ENTITY] had evil eye for his wife [ENTITY] - respondent - accused No.2. On 10.3.2009, respondent accused No.1 [ENTITY] as well as [ENTITY] were found together, however, on 14.03.2009, dead body of [ENTITY] was found in the area called Laxminagar, near the house of one [ENTITY]. [ENTITY], Sarpanch of the village, informed the police about the incident and the FIR was registered.
2.2 During the course of investigation, statements of material witnesses were recorded. Both the respondents accused came to be arrested. Postmortem report of the deceased was collected. Necessary panchnamas were drawn in presence of panchas. Required articles were forwarded to Forensic Science Laboratory for examination. After collecting the required material for the purpose of lodgment of charge sheet, charge-sheet came to be filed in the court of learned Additional Chief Judicial Magistrate, Morbi. Since the offence punishable under [SECTION] of the [ACT] is exclusively triable by the Court of Sessions, learned Additional Chief Judicial Magistrate, committed the case to the Fast Track Court No.3, Morbi, which was registered as [CASE NUMBER].
2.3 The Trial Court framed charge against both the respondents - accused, to which they did not plead guilty and claimed to be tried. Thereupon, the prosecution examined 8 witnesses and produced 29 documentary evidence, detailed in the paragraph-7 and paragraph-8 in the impugned judgment and order. After the prosecution concluded its oral evidence, the Trial Court recorded the further statements of the respondents accused under [SECTION] of the Code and the accused in their further statements, denied generally all the incriminating circumstances put to them by the Trial Court and stated that they were falsely implicated in this case. After appreciating, analyzing and scrutinizing the evidence on record and considering the submissions made on behalf of both the sides, the Trial Court came to the conclusion that the prosecution failed to prove its case beyond any reasonable doubt against both the respondents accused and ultimately recorded their acquittal.
3 We have considered the submissions advanced by Mr. [ENTITY], learned APP for the Applicant [ENTITY], we have perused the impugned judgment and order and the set of evidence supplied by him during the course of his submission so also the record and proceedings of the [CASE NUMBER], which was called for by us vide order dated 8.7.[SECTION]0. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to the broad and reasonable probabilities of the case.
4 Considering the record and proceedings of the case, there is no dispute that the entire prosecution case was based upon circumstantial evidence as there was no direct evidence of any eye witness pertaining to the incident. It transpires that the medical evidence suggests the cause of death being serious injuries on head and neck of the deceased. Thus, the prosecution established that deceased [ENTITY] died by homicidal death, however, considering the evidence of the first informant [ENTITY], he only stated that, he came to know that the dead body of deceased [ENTITY] was found. He further stated that on 10th March, 2009, he had seen the respondent -accused No.1 in the company of deceased [ENTITY] and thereafter on 14th March, 2009 dead body of the deceased was found. Considering the evidence of PW-3 [ENTITY], it was he who spotted the body of the deceased first in point of time. Considering the evidence of PW-4 [ENTITY], he stated that, he came to know through the first informant- [ENTITY] that there was some money dispute between the deceased and respondent No.1 [ENTITY], however, as per the prosecution case, the motive alleged was that, the deceased viewed the respondent accused No.2 [ENTITY], wife of the respondent-accused No.1 with evil eye. The prosecution examined PW-5 [ENTITY], and according to him, his house is situated in Laxminagar and in his house both the respondents accused used to reside as tenant. Except that, nothing emerged from his evidence, which helped the prosecution. It is further pertinent to note that no weapon came to be recovered either from any of the accused or the same could be discovered at their insistence. It is true that a blood spot was found on the cloth of respondent accused No.1 [ENTITY]. Considering the FSL report, nothing revealed that the blood spot found on his cloth matched with the blood group of the deceased. It is further pertinent to note that as per the evidence of PW-1 Dr. [ENTITY], the postmortem was performed on dated 15th March, 2009, and according to him, the death might have occurred before about 6 to 7 days from the date of the postmortem i.e. 6 to 7 days prior to the date of 15th of March, 2009. The evidence renders the evidence of the first informant [ENTITY] a doubtful one when [ENTITY] says that on 10th March, 2009 he had seen the deceased alive in the company of the respondent accused No.1 [ENTITY].
4.1 Under such circumstances, the circumstances relied upon by the prosecution that the deceased was last seen together while he was alive in the company of respondent accused No.1- [ENTITY], appeared to be not only weak piece of evidence but even the said circumstance cannot be said to have been duly established. Except this, no other evidence was adduced by the prosecution to prove the complicity of respondent accused No.1 in this incident. So far as respondent No.2 [ENTITY] is concerned, no evidence came to be adduced by the prosecution, worth the name, to connect her with the incident. Under such circumstances, the chain of circumstantial evidence neither can be said to have been established nor can be said to have been proved.
5 On overall view of the matter, according to us, the prosecution has not been able to bring home the charge levelled against the accused persons and the complicity of the accused for the commission of the offence is not established as there is no cogent and convincing evidence against the accused persons to connect them with the alleged crime.
6. In view of the unsatisfactory evidence led by the prosecution, we are of the considered opinion that no illegality or infirmity has been committed by the Trial Court in acquitting the accused persons of the offences with which they have been charged. We find ourselves in complete agreement with the ultimate conclusion and the resultant order of acquittal, as, in our view, no other conclusion was possible except the one reached by the Trial court.
7. This is an acquittal appeal. The principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the Trial Court have been very succinctly explained by the Supreme Court in the matter of [PRECEDENT].
(a) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction.
(b) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse.
(c) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds not subscribing to the view expressed by the trial Court that the accused is entitled to acquittal.
(d) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial Court.
(e) If the High Court, on a fresh scrutiny and reappraised of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.
(f) The High Court has also to keep in mind that the trial Court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court, especially in the witness box.
(g) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.
10 In [PRECEDENT], Supreme Court has held that in an appeal against acquittal, the High Court should attach greater weight to appreciation of evidence by the Trial Judge who had the occasion to watch the demeanour of the witnesses.
8 It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible then also 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. (See Ramesh Babulal Doshi V. [ENTITY] (1996) 9 SCC 225). In the instant case, the learned APP has not been able to point out to us as to how the findings recorded by the trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
9 On overall appreciation of evidence, this Court is satisfied that there is no infirmity in the reasons assigned by the trial Court for acquitting the accused persons. Suffice it to say that the trial Court has given cogent and convincing reasons for acquitting the accused persons and the learned A.P.P. has failed to dislodge the reasons given by the trial Court and convince this Court to take a view contrary to the one taken by the trial Court.
10 Seen in the above context, we do not find any valid reason or justifiable ground to interfere with the impugned judgment and order acquitting the accused persons of the offences with which they were charged.
11 For the foregoing reasons, the application fails and accordingly it is rejected. Resultantly, leave to appeal is refused, and as a consequence thereof, Criminal Appeal No. 313 of [SECTION]0 is dismissed.
([ENTITY], J.) ([ENTITY], J.) pnnair