NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined (PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)

1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 03.05.1995 passed by the learned Additional Sessions Judge, Mehsana in Sessions Case No.216 of 1992, whereby the respondents herein - original accused came to be acquitted for the offences under Section 302 read with Section 34 alternatively Section 114 of Indian Penal Code, 1860, the appellant - State has preferred present appeal under section 378 of the Code of Criminal Procedure, 1973 ("the Code" for short).

2. The brief fact of the case of the prosecution against the accused is as given below:

The complainant has three daughters and two sons. Chandrakant is the eldest son of the complainant and he has a job in Gandhinagar. Geetaben was younger than him. She was married with Narendra, the son of the accused in this case. The married life of Narendra and Page 2 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined Geeta was not amicable. The accused persons used to mentally and physically harass the complainant's daughter Geeta and they used to demand more dowry and they used to drive her away after beating her. A complaint in this regard had been lodged against the accused persons in the Mahesana police station and a case had also been filed. Thereafter, the accused persons drove away the complainant's daughter. Therefore, the complainant's daughter Geeta filed a complaint against accused's son Narendra for maintenance. The said application was granted by the Court and the order for maintenance was passed. Thereafter, the accused took the complainant's daughter to their home, but they would not allow her to talk with anyone and they used to harass her. But the complainant's daughter was tolerating all these things. Because she was believing that their behaviour would improve and her married life would become smooth. However, the accused continued to harass the complainant's daughter. On 15/10/87 at 8 O'clock in the morning, the accused tied the hands and legs of the complainant's daughter and poured kerosene on her at Pachot and the Accused No.1 set her ablaze with a match-stick. The complainant's daughter shouted Page 3 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined many times for help. Therefore, many people of the street gathered there and tried to save her. But the accused did not allow any of them to save her and instigated them. Accused No.1 has sustained burn injuries on his hands while setting the complainant's daughter ablaze and he has taken treatment for the same at the Mahesana Civil Hospital. With respect to the said incident, the Accident Entry No.15/87 was made in the Mahesana Taluka Police Station as per section 174 of the Cr.P.C. and an investigation was conducted. In this manner, the accused persons in this case caused so much mental and physical harassment to the complainant's daughter Geeta. As the economic condition of the complainant was not sound, he was not able to give more dowry. Therefore, the accused persons murdered the complainant's daughter by setting her ablaze.

2.2 On receiving the aforementioned complaint, the Court conducted an inquiry as per section 202 of the CrPC with respect to the same. During the inquiry, the complainant gave his deposition. Moreover, a witness named Darji Kantibhai Tapubhai was examined. Page 4 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024

NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined Considering the depositions of the complainant and the said witnesses, it appeared to the subordinate court that there is prima facie evidence to believe that an offence under section 302 read with section 34 of the IPC is made out against the accused. Therefore, the case was committed to the Sessions Court for trial. Thereafter, when the case was transferred to this Court for trial, the charge was framed against the accused persons for the offence punishable under section 302 read with section 34 of the IPC.

2.3 The accused pleaded not guilty for the charges mentioned in the charge sheet and demanded for the trial of the case. Therefore, the evidence of the prosecution was recorded.

2.4 The prosecution examined Vasudevbhai Chhanalal Pandya, eye-witness Kantibhai Tapubhai Darji and Dr. Natwarbhai Rameshbhai Joshi, who conducted the postmortem of the deceased Geetaben. On completion of the evidence of the prosecution, further statements of the accused persons were recorded. The accused stated in their statements that the evidence against them is false. At the time of the incident, Geetaben had gone to the Page 5 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined third floor for making tea. At that time, when she caught fire, she shouted for help and therefore, Accused No.1 and No.2 went to the third floor to save her, and they covered Geetaben with quilts etc., and put out the fire. While saving her, the Accused No.1 sustained grave burn injuries and he got treatment at the Mahesana Civil Hospital and at the hospital of Dr. Majmudar as an inpatient. To prove the contradictory statements in the deposition of witness Kantibhai Tapubhai Darji which appeared during the police statements, the prosecution has examined witness Navinchandra Ambaram, who was serving as the writer constable.

3. In pursuance of the complaint lodged by the complainant with the Mehsana Police Station for the offence under Section 302 read with Section 34 alternatively Section 114 of the IPC, 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 respondents - accused, charge-sheet came to be filed in the Court of learned the JMFC, Mehsana. As said Court lacks jurisdiction to try the offence, it Page 6 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined 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.7 against the respondents accused for the aforesaid offences. The respondents accused pleaded not guilty and claimed to be tried.

5. In order to bring home charge, the prosecution has examined 3 witnesses and also produced various documentary evidence before the learned trial court, more particularly described in para 5 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 respondents - 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.

Page 7 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024

NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined

7. Both the proceedings, Criminal Appeal No.752 of 1995 against acquittal and Criminal Revision Application No.244 of 1995 against the order of acquittal dated 03.05.1995 passed by the trial Court in Sessions Case No.216 of 1992, are taken together and considered accordingly.

8. Heard learned APP Ms. Maithili Mehta for the appellant - State and learned advocate Mr. Mehul Sharad Shah for the respondent No.2. It is also required to be noted that vide order dated 28.06.2022, the appeal qua the respondent No.1 - original accused No.1- Hasmukhbhai Jethalal Pandya is abated as he had expired on 22.07.2015, therefore, appeal is considered only for the respondent No.2 - Pushpaben Hasmukhlal Pandya.

9. Learned APP, Ms. Maithili Mehta has submitted that there is evidence of the eye witness on the record as prosecution witness No.3 at Exh.27- Kantilal Tapubhai Daraji and she has drawn our attention towards the deposition given by the witness in examination-in-chief, as P.W.3 has stated that when he was stitching clothes at the first floor of the house of the present respondents Page 8 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined on 15.10.1987, in the morning at about 10:30 a.m., he heard the shouting "save, save" from the deceased- Gitaben Pandya and therefore, he rushed to the second floor of the house where it is found that the deceased- Gitaben was burning and who happens to be the daughter-in-law of the present respondents and he found that accused No.1- Hasmukhbhai, who expired during the pendency of the appeal was moving around the deceased- Gitaben and he is also having some burn injuries on his hands and legs and thereafter, the witness has returned back, in the same breath, he has added in his examination-in-chief, additionally, that now he is stating that he has also seen the accused No.2- Pushpaben, who has poured Kerosene and accused No.1- Hasmukhbhai has ignited the matchstick and when he went to the place of the incident, he found that hands and legs of the deceased- Gitaben was tied with the rope. Learned APP has further drawn our attention towards the deposition of the Doctor Natwarlal Ramjibhai Joshi, who has examined as P.W.1 at Exh.21 and submitted that he has also supported the case of the prosecution, however, she has drawn attention of this Court that the Doctor has stated that the accused No.1- Hasmukhbhai has Page 9 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined brought the deceased to his hospital at about 10:30 a.m. but she has further submitted that the Doctor has also supported the case of the prosecution that Kerosene is poured on the body of the deceased and therefore, she has submitted that the trial Court has committed error in acquitting the accused persons.

9.1 Learned APP has further drawn our attention towards the other documentary evidence; Complaint, F.S.L. report as well as P.M. note and various Panchnamas. She has also drawn our attention towards the deposition of the complainant - Vasudev Chhanalal Pandya, who has deposed as Prosecution Witness No.2 at Exh.23 and submitted that from his deposition, it transpires that there was a dispute going on between the deceased and her husband and the case of the complainant that the present respondents, who happens to be father-in-law and mother-in-law of the deceased were giving mental and physical torture and thereafter, the deceased was residing with the father at her parental house and has also claimed maintenance and thereafter, once again the accused persons have requested to send the deceased to her matrimonial house and accordingly, the deceased was residing with the present Page 10 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined respondents - accused persons and considering the deposition of the father which also supports the case, when other panchnamas also clearly supports the case and therefore, she has submitted that the Court below has committed gross error in appreciating the material evidence available on the record as, prima facie, offences were made out against the present accused persons and the offences punishable under Section 302 read with Section 34 alternatively Section 114 of the IPC. She has also drawn our attention towards the charge framed by the trial Court at Exh.7, whereby, charge of above- mentioned Sections came to be framed. She has also submitted that the prosecution has proved its case beyond reasonable doubt and therefore, the trial Court has committed error in acquitting the accused persons on erroneous ground.

10. Per contra, learned advocate Mr. Mehul Sharad Shah for the respondent No.2 - original accused has strongly opposed the submissions made at the bar and has supported the judgment passed by the trial Court and has further submitted that the trial Court after appreciating the evidence and after considering the Page 11 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined conduct of the witnesses and also the contradictions of the evidence and also considering the aspect of over implications of the accused persons, has rightly come to the conclusion and the prosecution has failed to prove its case under provisions of Section 302 read with Sections 34 alternatively 114 of the IPC . The Court has also observed that there is no charge framed under Section 306 or 498(A) of the IPC and therefore, Court below has acquitted the accused persons as the prosecution has failed to prove its case and therefore, the trial Court has given proper and convincing reasons after appreciating evidence for acquittal and therefore, there is no perversity or illegality committed by the trial Court and therefore, the present appeal as well as the Criminal Revision Application filed by the original complainant are required to be dismissed.

11. Learned Senior Advocate Mr. Prakash K. Jani appearing on behalf of the original-complainant in captioned Criminal Revision Application. Considering the submissions made by the learned APP Ms. Maithili Mehta, the matters are considered together and proceeded accordingly for final adjudication of the appeal Page 12 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined as well as the Criminal Revision Application.

12. It transpires from the material available on the record that the charge is framed against the present respondent No.2 as well as deceased-respondent No.1, who happens to be mother-in-law and father-in-law respectively of the deceased-Gitaben, who died in an unfortunate incident dated 15.10.1987 between 10 a.m. to 10:30 a.m. at the third floor of her matrimonial house and charge is framed accordingly. It also transpires that the complaint is registered pursuant to the alleged incident by the father of the deceased namely Vasudev Chhanalal Pandya on 16.03.1995 by stating that his daughter-Gitaben married nine years back with the son of the present respondents namely Narendrakumar H. Pandya and there was matrimonial dispute going on between the husband and wife and Gitaben was residing for some period with the complainant due to such quarrels were going on and there is litigation also going on between the parties for maintenance etc. Thereafter, Gitaben was again residing with the accused persons at her matrimonial house and at the time of the incident, the complainant came to know that his daughter died Page 13 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined due to burn injuries and on inquiry with the neighbours, he found that her father-in-law and mother-in-law have jointly committed offence by pouring kerosene on the deceased- Gitaben and thereafter, igniting the matchstick and Gitaben is burnt due to that incident and therefore, the complaint is given. The Police has carried out the investigation and recorded statement of one witness who is claiming that he was stitching clothes at the residence of the accused Nos.1 and 2, where the deceased was residing and by perusing the version of that witness who is P.W.3, who was examined at Exh.27- Kantilal Tapubhai Daraji, it transpires that in examination-in- chief, he has stated the he was stitching clothes at first floor of the house and at the second floor of the house he found that Gitaben was shouting and when he reached the place of incident, he found that Gitaben was burning and found that accused No.1- Hasmukhbhai was standing near Gitaben and also having injuries and thereafter, he returned back to his place. Thereafter, he has added in his deposition in examination-in-chief that he has also found that accused No.2- Pushpaben has poured the kerosene and accused No.1- Hasmukhbhai was igniting the matchstick and when he went at the Page 14 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined place of incident, he found that hands as well as legs of Gitaben were tied with ropes. The incident stated happened at 10:30 a.m. and as per the deposition of Kantilal Tapubhai Daraji, the deceased- Gitaben was taken to the hospital at about 3 to 4 o'clock, where she was found dead. In cross-examination, he has submitted that earlier he went to depose before the Court regarding the same incident and in that deposition, he has stated that at the time of incident, accused No.1- Hasmukhlal Jethalal Pandya was performing 'pooja' and Pushpaben Hasmuklal Pandya- accused No.2 was busy with cooking activity and Gitaben was also doing some household work and when he was working and stitching clothes, he found that there is some shouting in the outside from the residence of other persons. He has heard the shouting of the other persons that something is being burnt on the above floors of the house and thereafter, some of the persons have run over the said floor and thereafter, he had also run over towards that floor and at that point of time, at the third floor, Gitaben was burning and thereafter, some of the persons have brought Hasmukhlal and at that point of time, the witness has found that Hasmukhlal was also burnt on Page 15 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined the fingers of the hand and on the legs and also having some burn injuries on the face as well as hairs. Thereafter, they have taken the deceased- Gitaben in the 'Hathlaari' to the nearby hospital and thereafter, he went to his house after closing work. He has also admitted that he was working in the house of the accused persons since last two days, but he never heard about any quarrel between the deceased as well as the accused persons. He has also admitted in his cross-examination that he has forgotten when he has deposed before the Magistrate on earlier occasion while giving the statement that he has not stated that respondent No.2 - Pushpaben has poured the kerosene and respondent No.1

- Hasmukhbhai has ignited the matchstick. 12.1 Considering all the aforesaid aspects, it clearly transpires that the deposition of witness - Kantilal T. Daraji is not trustworthy at all. He has also given incorrect version in his examination-in-chief that incident has occurred at second floor and he was stitching at first floor. In fact, from the material available on the record and even he has admitted in his cross- examination that the incident has taken place at the Page 16 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined third floor of the house. Moreover, there is no whisper about the pouring of kerosene by the respondent No.2 - original accused No.2 and the igniting of matchstick by the respondent No.1 - original accused No.1. Moreover, he has also given contradictory version about the presence of other persons, who rushed from outside to save the deceased. He has also given contradictory version about the activities carried out by the accused Nos.1 & 2 at the time of incident.

12.2 Now, considering the deposition of the complainant - Vasudev Chhanalal Pandya; it transpires that his deposition is based on hearsay evidence. Being father of the married daughter - deceased, it seems that he has given his complaint, but he is not having any personal knowledge about the occurrence of incident and he has given past history, which may indicate about any mental harassment or any cruelty, but no charge has been framed under Sections 306 or 498(A) of the I.P.C ., and evidence has also not been led in that direction, no investigation has been carried out as well. Therefore, the version of complainant - Vasudev Chhanalal Pandya is also not corroborated by the evidence available on the Page 17 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined record.

12.3 Now, considering the deposition of doctor - PW- 1, who has given his version at Exh.21; he has specifically deposed that at about 10:30 a.m., respondent No.1 (Hasmukhlal Jethalal Pandya) - original accused has brought the deceased - Gitaben to his hospital. When, the doctor received the dead-body of deceased - Gitaben, he had started the postmortem at 5:15 p.m. on 15.10.1987 and completed the postmortem on 6:30 p.m. It also transpires from the record that respondent No.1 (Hasmukhlal Jethalal Pandya) - original accused has also received some burn injuries, who has also been examined by the doctor at 10:30 a.m. on 15.10.1987. He has also deposed that he has not given his opinion about the cause of death immediately after completing the postmortem, and waited for F.S.L. report, and thereafter, he has given the report about the cause of death. The deceased was having superficial injuries, and accused No.1 has also received injuries up to 40% in his body. 12.4 Additionally, it also transpires that accused No.1 has given further statement at Exh.30, stating that Page 18 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined when he found that something is burning on the top floor of the house, as somebody has shouted from the outside, he, alongwith his wife, immediately went to the top floor, and found that their daughter-in-law - Gitaben was burning, and then, tried to save her. While doing so, respondent No.1 (Hasmukhlal Jethalal Pandya) - original accused has also received some burn injuries. He has also stated that respondent No.2 - Pushpaben Hasmukhlal Pandya has also tried to save Gitaben with the help of quelt (Godara). Further statement has been given by respondent No.2 - Pushpaben Hasmukhlal Pandya at Exh.31 by giving her deposition on the same line.

12.5 It is also found from the record that the State has also dropped Panch witnesses and P.S.O. by application at Exh.26. Therefore, only three witnesses were examined; (i) complainant - Vasudev Chhanalal Pandya (ii) doctor, who has performed the postmortem, and (iii) Kantilal T. Daraji - the person, who is claiming that he was present at the time of incident. Deposition of Kantilal is not at all trustworthy. The version of the complainant - Vasudev Chhanalal Pandya is not Page 19 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined corroborated by the evidence available on the record. On the contrary, the deposition of the doctor indicates that there is possibility that accused persons have tried to save deceased, while she was burning. It also clearly transpires that Kantilal has tried to improvise his deposition with a view to support the case of the prosecution. The complaint of the complainant is also not required to be believed as when the complainant gave his deposition in the Court, on earlier occasion i.e. on 30.10.1987, at that point of time, he has not referred the so-called eyewitness - Kantilal T. Daraji. When the complaint was given 20.11.1987 before the Court, at that time also, the name of Kantilal T. Daraji was not mentioned. Therefore, the say of the complainant that hands and legs of his daughter was tied with rope by the accused persons and subsequently, they have burnt his daughter by powering kerosene and igniting the matchstick, this fact came to his knowledge from various persons, is not explained at all or not explained by the deposition of the other witnesses, who claimed to be present at the place of incident, who are neighbours or nearby residents and has also rushed to save Gitaben, they are also not examined. The various Panchnamas are Page 20 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined also not proved by examining the Panch witnesses. The trial Court has considered the evidence of the three witnesses in detail, and has come to the correct conclusion that the case is not proved at all by the prosecution. The charges, which are framed, under Section 302 read with Sections 34 alternatively 114 of the Indian Penal Code , 1860, is not proved by cogent and convincing material. The deposition of various witnesses are inconsistent and contradictory as well as are with a view to over implicate the accused persons. The trial Court has rightly come to the conclusion. There is no material available on the record and the case is not proved by the prosecution as per the charge. The PW-3 - Kantilal T. Daraji is also found got up witness with a view to implicate the accused persons by the complainant, merely, on the basis of suspicion that accused persons have committed offence as alleged in the complaint.

12.6 Therefore, considering the totality of the material available on the record and facts and circumstances of the present case and considering the provisions of Section 302 read with Sections 34 alternatively 114 of the Indian Penal Code , 1860, we Page 21 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined found that the prosecution has miserably failed to prove its case and the trial Court has rightly acquitted the accused persons. After re-appreciating the entire evidence, we are in consonance with the findings of the trial court as there is no illegality or perversity committed by the trial Court while considering the case of the prosecution on merits and thereafter, acquitting the accused persons as the prosecution has failed to prove its case by giving proper evidence and sterling quality of proof. Therefore, no interference is called for by this Court. 12.7 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 persons.

12.8 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 Page 22 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined 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 appellant 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.

12.9 It is fruitful to refer the provisions of Section 302 read with Section 34 alternatively 114 of Indian Penal Code , 1860, which are as under:

Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. Section 34 in The Indian Penal Code , 1860:-

When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

Section 114 in The Indian Penal Code , 1860:- Page 23 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024

Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence."

12.10 It is also relevant to refer the provisions of Section 378 of the Code, as under:

[(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 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 Page 24 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined 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 months, where the complainant is a public servant and Page 25 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined 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)." 12.11 In the case of Ram Kumar v. State of Haryana , reported in AIR 1995 SC 280, Supreme Court has held as under:

NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined 12.12 As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar 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.

12.13 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:-

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."

12.14 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.

12.15 It is also relevant to note that the Hon'ble Apex Court has time and again considered the aspect of Page 28 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined 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 Hon'ble Apex Court in the case of Mallappa and Others vs. State of Karnataka reported in (2024) 3 SCC 544, and the entire law has been discussed in paragraph Nos.25 to 46, as under:

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 Page 30 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined 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:

(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:

30. In this case, the case of the prosecution substantially rests on the testimonies of PW-3 and PW-4 read with various documents, especially the reports of medical examination and post mortem.

31. PW3 is the eye witness of the incident. His testimony has been rejected by the Trial Court by terming it as artificial. PW-3 deposed that he was present at the place of incident when the accused persons started assaulting the deceased and PW-4 on 28.06.1997 at around 4 P.M. PW-3 deposed that A3 had assaulted PW-4 as he was running for his life along with PW-3. PW-4 was attacked from the back and PW-3 successfully managed to hide behind the bushes. Notably, PW-3 hid behind the bushes and observed the assault till Marthandappa was dead and PW-4 was unconscious. He then came out to check them and fearing for his life, he again rushed behind the bushes. He admitted that he was hiding behind the bushes till sunset. Thereafter, he came out and started walking towards Devpura, although he admitted that there were a number of buses plying on the route. But PW-3 takes no bus and keeps walking towards Devpura. On reaching there, he sat at the bus stand and kept on sitting there. Fast forward to the next morning, PW-3 catches the bus only at 6 A.M. on the next morning. The explanation as to how PW-3 spent the entire intervening night of 28- 29.06.1997 is missing from the chain of circumstances.

32. The statement that he was simply sitting at the bus stand for the entire night, while Marthandappa was dead and PW-4 was severely injured and unconscious, fails to inspire confidence. More so, when the entire reason for hiding behind the bushes was the fear of life. Despite such fear, PW-3 did not choose to inform the police out-post, on the way Page 32 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined from Devpura to Aidbhavi, and rather, he kept on sitting at the Devpura bus stop. He also admitted that his relatives were residing around 4 km from the place of incident at Nagaral. However, he chose not to inform them either. He also admitted that he took no steps to provide medical treatment to PW-4 who was lying unconscious at the place of incident as a result of the assault. The said fact could have been entertained if the place of incident was completely secluded. Such is not the case, as it is admitted that the place of incident fell on a bus route and buses were indeed plying.

33. It was almost 18 hours after the assault that PW-3 managed to reach Aidbhavi to inform PW-2 about the incident. The High Court found the conduct of PW-3 to be perfectly natural, as it was understandable that PW-3 wanted to inform PW-2 before anyone else. Such conduct would have been justified if PW-2 was residing in close proximity of the place of incident. The very fact that PW-3 did not even contemplate about providing medical help to PW-4 or to seek protection from the local police despite such a drastic assault and instead, chose to wait for 18 hours, raises a reasonable doubt on the credibility of his version. This circumstance assumes a greater importance in light of the fact that PW4 was the cousin brother of PW3 and not some stranger. The conduct of PW-3 was not that of a reasonable man placed in such circumstances and the Trial Court was right in terming it as artificial.

34. The conduct of PW-3 renders his very presence at the place of incident as doubtful. Despite a heavy assault by multiple accused persons, he did not suffer any injury at all. That too when he was indeed chased by A3 while attacking PW-4. It is extremely doubtful that the assailants simply chose to give up on PW-3 and did not pursue him behind the bushes, despite knowing that PW-3 could turn out to be an eye witness of the incident. The story that follows the story of hiding Page 33 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined behind the bushes is equally doubtful and leaves one speculating. The timelines, the route taken by PW-3, complete disregard for severely injured PW-4, failure to inform the police post despite access to it etc. are some of the factors that raise a reasonable doubt on the entire story. The chain of circumstances created by the testimony of PW-3 is not consistent with the outcome of guilt.

35. The version of PW-4 is that he was attacked from the back by A3 and thereafter, he fell unconscious. As per his testimony and the testimony of PW-3, PW-4 was attacked by an axe on his head, back and scrotum. The first point of corroboration is to be seen from the circumstances following the assault. The assault on PW-4 took place at around 4 P.M. and he was admittedly unconscious thereafter. He remained as such until he was "self-admitted" in the hospital at around 12:30 P.M. the following day. The second point for corroboration of this version could be taken from the wound certificate issued by PW-8 during the treatment of PW-4 at Government Hospital, Shorapur. The Trial Court relied upon the wound certificate and noted a contradiction between the condition of PW-4 at the time of admission. In the certificate, PW-4 is stated to be "self-admitted" but at the same time, he is stated to be unconscious. The High Court rejected this contradiction as material by observing that PW-4 was semi-conscious at the time of admission and therefore, he could have admitted himself in the hospital. However, the inherent contradictions in the statement of PW-4 are not limited to this point.

36. The injuries found on PW-4, as per the wound certificate, were simple in nature. PW-8 gave some treatment to PW-4, however the nature of treatment is not indicated. Thereafter, PW-8 forwarded him to a hospital at Gulbarga where injury certificate Ex.P12 was prepared. Ex.P12 also recorded the nature of injury to be simple in nature. The Page 34 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined nature of injury is to be corroborated with the nature of assault, as deposed by PW-4 and PW-3. They deposed that A3 had attacked PW-4 with an axe at three sensitive places i.e. head, back and scrotum. The attack was so severe that PW-4 immediately fell unconscious. In the ordinary course of natural events, an injury inflicted by an axe, that too in a manner that the injured immediately fell unconscious and remained unconscious for almost 20 days, could not have been a simple injury. More so, a simple injury of a standard that required no admission in the hospital.

37. Furthermore, PW-4 travelled to the hospital at Shorapur by a bus, but he failed to inform any passenger about the assault. Despite such injuries, including on the head, no one noticed his condition. He was unconscious for over 20 days and after he regained consciousness, his statement was recorded by PW-10. It is difficult to comprehend as to how a severely injured person, who could not gain consciousness before 20 days, managed to go to the hospital on his own by using a public bus and later, to another hospital at a different place. It is difficult to comprehend that PW-4 was conscious enough to undertake two journeys to two different hospitals, by public transport, but did not have the senses to give a statement to the IO PW-10 before the passage of almost 30 days. During cross examination, PW-4 had deposed that he had sustained injuries on head and testicles only, and there was no other injury. The said statement was a material improvement from the versions initially put forth by PW-3 and PW-4 whereby, PW-4 had sustained injuries on the back as well. However, no such injury was recorded in the wound certificate and in all likelihood, the improvement was made for that reason. The testimony of PW-4 is impeachable for another reason - the time of the offence. As per his version, the time of assault was around 4 P.M., whereas, as per the wound certificate Page 35 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined Ex.P12, the time of injury was at night. Similar issue with respect to timing was noticeable in the post mortem report as well.

38. Notably, all these aspects have been carefully analysed and appreciated by the Trial Court, but the High Court rejected all the doubts by observing that PW-4 was an injured witness and there was no reason to disbelieve his testimony. The High Court omitted to take note of two material aspects - the fact that the statement of PW-4 was recorded after a period of one month from the date of incident and the factum of family relationship between the deceased and PW-4. The former aspect raises a grave suspicion of credibility, whereas the latter raises the suspicion of being an interested witness. In normal circumstances, where a testimony is duly explained and inspires confidence, the Court is not expected to reject the testimony of an interested witness, however, when the testimony is full of contradictions and fails to match evenly with the supporting evidence (the wound certificate, for instance), a Court is bound to sift and weigh the evidence to test its true weight and credibility.

39. Pertinently, the Trial Court had reached its decision after a thorough appreciation of evidence and we have no doubt in observing 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.

Page 36 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024

NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined

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 Sanwat Singh v. State of Rajasthan , wherein it was observed thus:

(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:

NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined

43. In this case, the appellants, as a separate argument, have also submitted that the case is not based on circumstantial evidence and is based on direct evidence of PW-3 and PW-4, and therefore, the principles of circumstantial evidence shall not apply. The submission is erroneous for various reasons. First, the direct evidence of PW-3 and PW-4 is to be tested on its own strength, especially in light of their subsequent conduct after the incident. As per their version, they were accessories to the fact, however, their subsequent conduct left much to be desired and therefore, their direct testimony was found to be incredible, as already discussed above. Secondly, in the absence of credible direct evidence, the case essentially falls back on the circumstantial evidence, and thirdly, the prosecution has failed to complete the chain of circumstances. The contradictions between oral testimonies and medical examination reports, failure to seize essential materials from the scene of crime, failure to explain the mode of conveyance while going from one place to another, failure to prove the presence of PW-3 at the place of incident, failure to corroborate the injuries etc. are some of the deficiencies in the chain of circumstances. It would be apposite to refer to the decision of this Court in Sharad Birdhichand Sarda v. State of Maharashtra10 , wherein the "Panchsheel" or five principles of circumstantial evidence were laid down as follows:

It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and Page 39 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] where the observations were made:

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

45. The circumstances in this case are far from conclusive and a conclusion of guilt could not be drawn from them. To sustain a conviction, the Court must form the view that the accused "must have"

is a legal distinction and not merely a grammatical one.

46. In light of the foregoing discussion, we hereby conclude that the High Court had erred in reversing the decision of acquittal, without arriving at any finding of illegality or perversity or error in the reasoning of the Trial Court. Even on a fresh appreciation of evidence, we find ourselves unable to agree with the findings of the High Court. Accordingly, the impugned order and judgment are set aside. We find no Page 40 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined infirmity in the order of the Trial Court and the same stands restored. Consequently, the appellants are acquitted from all the charges levelled upon them. The appellants are directed to be released forthwith, if lying in custody."

13. In view of the above decision , we find that the view taken by the learned trial court, while acquitting the accused persons is possible view. The findings given by the learned trial court are found just and proper as there is no error or perversity in the findings given by the learned trial court, and the learned trial court has properly appreciated the materials available on record.

14. 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.

15. In view of the above and for the reasons stated above, present Criminal Appeal deserves to be dismissed and is, accordingly, dismissed. Record and Proceedings be Page 41 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024 NEUTRAL CITATION R/CR.A/752/1995 JUDGMENT DATED: 04/06/2024 undefined sent back forthwith to the concerned trial court. Bail and bail bond, if any, stands cancelled. Surety also, if any given, stands discharged.

16. In view of dismissal of Criminal Appeal No.752 of 1995, the Criminal Revision Application No.244 of 1995 is required to be dismissed and the same is dismissed, accordingly.

(SANDEEP N. BHATT,J) (J. C. DOSHI,J) SLOCK BAROT Page 42 of 42 Downloaded on : Thu Jun 06 20:38:34 IST 2024