CAV Judgment

1. This appeal filed by the appellant - State under Section 378(1)(3) of the Criminal procedure Code, 1973 (Code), assails the judgment and order, dated 28.03.2007, passed by the Additional Sessions Judge, Fast Track Court No.3, Ahmedabad (City) in Sessions Case No.393 of 2006 acquitting the respondent - original accused for the offence punishable under Sections 498(A), 306 and 114 of the Indian Penal Code, 1860 ('IPC', for short).

          2.1 The brief facts of the prosecution case are that the complainant Suvalal Nasibram Ravat, who is the resident of 381, Mithakuvani Chawl, Lohakhan, Ajmer (Rajasthan) has filed complaint before Sardarnagar Police Station, being C.R.No.I- 2 of 2000, to the effect that marriage of deceased Gitaben has taken place with accused Ranjitsinh (respondent herein) according to custom at Ajmer. After her marriage, deceased Gitaben was residing with mother-in-law and brother-in-law at Noblenagar, Ahmedabad as the husband of the deceased was in Military. Thereafter, marriage of brother-in-law Dineshsinh has taken place and at the relevant point of time, wife of Dineshsinh was also residing with deceased Gitaben. During wedlock period, deceased Gitaben has given birth to a baby, who was aged about one year at the relevant point of time. As per allegation of the complainant, there was no problem till the marriage of brother-in-law Dinesh, but after marriage of Dinesh, accused persons have started to cause physical and mental harassment to the deceased. That accused Dineshsinh was intending that all the household work of the family is to be carried out by deceased Gitaben and as such deceased Gitaben was imposed with liabilities and due to this several time, disputes were taking place with mother-in-law, brother-in-law and wife of brother-in-law. It is further case of the prosecution that as the husband of the deceased was in Military, she was also not provided with money for household expenses and the amount which was being sent by husband was kept by her mother-in-law, not only that, no amount was being spent towards medical expenses for daughter of Gitaben and this fact was being drawn to the notice of complainant. It is also the case of the complainant that accused - respondent has written a letter dtd.16.12.99 addressing to Gitaben, in which she was directed to shift at Ahmedabad and present respondent has given assurance to manage for accommodation. Thereafter another letter dtd.12.1.99 was received by Gitaben which was addressed to one Sangitaben, and present respondent is having love affairs with Sangitaben, and therefore, she was unhappy towards respondent accused. According to allegations of the complainant, she was brought to the house of respondent on 13.12.99 and thereafter, on 22.12.99, mother in law of the deceased has made a telephone that Gitaben has received burn injuries. Thereafter, on receiving message from the members of her in law, the complainant and his wife has visited V.S.Hospital, Ahmedabad, and before this prosecution witnesses, deceased Gitaben has stated the fact that she was subjected to cruelty by present respondent as well as her mother in law, brother in law and wife of brother in law, and therefore, she has committed suicide. Therefore, aforesaid complaint was filed before Sardarnagar Police Station, vide CR No.1-2/2000. At that relevant point of time, and remaining accused were arrested. It is to be noted that after the judgment and order of acquittal dated 12.08.2002 acquitting rests of the original accused, the present respondent - accused was arrested and supplementary charge-sheet was filed before concerned Magistrate. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court.

          2.2 The trial was initiated against the respondents and during course of trial the prosecution examined 04 witnesses and produced 12 documents as documentary evidences. At the end of trial, after recording the statement of the accused under Section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge acquitted the respondent of all the charges leveled against him.

          2.3 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellant State has preferred the present appeal.

          3.1 It was contended by learned APP that the judgment and order of the Sessions Court is against the provisions of law; the Sessions Court has not properly prosecution considered and looking the to evidence led by the prosecution, it is established that the prosecution has proved the whole ingredients of the evidence against the present respondents. Learned APP has also taken this Court through the oral as well as the entire documentary evidence.

          3.2 It has been argued by learned APP that though there is direct and direct evidence connecting the respondent with the commission of offence, learned Sessions Judge could not acquit the respondent accused without appreciating oral and documentary evidence.

          3.3 It has been argued that learned Sessions Judge, without taking into consideration the provisions of Section 113(A) of the Evidence Act, has acquitted the accused though the marriage span of deceased and the accused was merely two and a half years. It has been argued that without taking into consideration the documentary evidence i.e. letters which are at Exhs.11 and 12 written by respondent which shows the mental cruelty being meted out to deceased, the learned Sessions Judge has acquitted the accused. Insofar as oral evidences are concerned, it has been argued that learned Judge has not properly taken into consideration the evidence of witnesses at Exhs.9 and 13, who are the original complainant Suvalal Nasibrao (father of the deceased) and Jamnaben Suvalal mother of the deceased, though they have fully supported the case of prosecution. It has been argued that from the evidences of these witnesses, the fact of accused having illicit relationship with one Sangitaben that too on the basis of letters which are found from the house of the deceased i.e. Exhs.11 and 12, has been clearly established without reasonable doubt which, in turn, strengthen the aspect of physical and mental cruelty being meted out to the deceased at the hands of accused respondent. It has been argued that the learned Sessions Judge, without appreciating these documentary and oral evidences, has acquitted the accused, which is against the law.

          4.1 Per contra, learned advocate Mr.Dagli for the respondent - accused has argued that this Court does not require to interfere with the judgment and order of acquittal passed by the learned Sessions Judge, looking to the fact that there are many contradictions and omissions appearing in the evidence of the prosecution witnesses.

          4.2 Learned advocate for the respondent accused has argued that the learned judge has rightly acquitted the accused looking to the cross- examination of the complainant, which suggests that there was healthy relationship between both the families of the accused and the complainant even after birth of daughter of the deceased. From the evidence of the complainant, it also establishes that the relationship between the families of the complainant and accused was normal. It has been argued that learned trial Court has rightly appreciated the evidence on record and, therefore, no interference is required and the appeal be dismissed.

5. Heard learned APP for the appellant State and learned advocate Mr.Dagli for the respondent accused.

          5.1 Before adverting to the facts of the case, it would be worthwhile to refer to the scope of interference in acquittal appeals. It is well settled by catena of decisions that an appellate Court has full power to review, re- appreciate and consider the evidence upon which the order of acquittal is founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice 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 acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court.

          5.2 Further, if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrive at would not be arrived at by any reasonable person, and therefore, the decision is to be characterized as perverse.

          5.3 Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. That the duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged.

          5.4 In the case of Babu v. State of Kerala, (2010) 9 SCC 189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C., it is held as under:

          12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (emphasis applied) 5.5 In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, (2019) 2 SCC 752, the Apex Court has observed that:

          "The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court".

          5.6 The Apex Court, in case of Chandrappa v. State of Karnataka (2007) 4 SCC 415, reiterated the legal position as under: (SCC p. 432, para 42) "(1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.

          (2)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 conclusion, both on questions of fact and of law.

          (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail 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.

          (4) 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 acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

          (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

          5.7 The Apex Court has held that the law on the issue can be summarized to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.

          5.8 These decisions clearly express that while exercising appellate powers, even if two reasonable views/conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.

6. In the aforesaid background and considering the oral as well as documentary evidence on record, following aspects weighed with this Court.

          i) If the Dying Declaration produced vide Exh.17 is taken into consideration, the deceased herself has stated that at around 7:30 on 22.12.1999 when she was making tea and when she took a turn to get water, her polyester sari caught fire on account of which she sustained burnt injuries. She has also stated that she was not subjected to mental and physical harassment by anyone and that she has not tried to commit suicide.

          ii) the deceased has also not given any statement before the police making any allegation against any of the accused person.

          iii) If the Dying Declaration at Exh.17 is taken into consideration, the Doctor has endorsed that the deceased was conscious enough when her dying declaration was being recorded. Moreover, the trial Court has also taken into consideration that though incident occurred on 22.12.1999 and deceased has expired on 26.12.1999, the complaint has been filed on 02.01.2000 and there is no satisfactory explanation coming forward as to why the complaint was not filed and it appears to be an afterthought.

          iv) Moreover, the allegations are of mere harassment without any positive act on the part of the accused and, therefore, mere allegation of harassment is insufficient for imposition of conviction under Section 306 of the IPC. In the present case, the prosecution has also failed to show an active participation of the accused in abating the deceased to commit suicide. Further, the standard of proof in criminal cases is beyond reasonable doubt. Therefore, on re-appreciation and reevaluation of the oral as well as documentary evidence on record, as referred to herein- above, it transpires that there are contradictions and omissions in the evidence of the prosecution witnesses.

7. This Court has gone through the judgment and order passed by the trial court and perused the oral as well as documentary evidence led by the trial court, more particularly the Record and Proceedings, received from the trial court and also considered the submissions made by learned Advocate for the appellant and learned advocate for the respondent accused.

          7.1 The trial court while considering the evidences in detail has observed that the prosecution failed to prove the case against the accused beyond reasonable doubt. The trial court has gone into the evidence in detail and has come to the conclusion that the accused are not guilty of the alleged offence.

          7.2 Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. Learned Additional Public Prosecutor is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record.

8. In the above view of the matter, this Court is of the considered opinion that the trial Court was completely justified in acquitting the respondents of the charges leveled against them.

          8.1 This Court finds that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.

          8.2 This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. Hence the appeal is hereby dismissed.

9. The judgment and order dated 28.03.2007 passed by the Additional Sessions Judge, Fast Track Court No.3, Ahmedabad (City) in Sessions Case No.393 of 2006 acquitting the respondents-accused is hereby confirmed. Bail bonds, if any, shall stand cancelled. R & P to be sent back forthwith.