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Judgment
K.S. Jhaveri, J.—The present appeal, u/s 378 of the Code of Criminal Procedure, 1973 is directed against the judgment and order dated
14th November 2008, passed by the Additional Sessions Judge, Surat in the Sessions Case No. 200 of 2007, whereby, the trial Court was
pleased to acquit the accused from the offence punishable u/s 302 of the Indian Penal Code and convicted the accused u/s 304(1) of the Indian
Penal Code.
The brief facts of the prosecution case is as under:
2.1 That the accused Chandrikaben was living with her husband and children at Amroli village Surat. The accused is having three children. On 27th
April 2007, as one of the children of the accused was crying, her husband told the accused to console the child. Therefore, the accused got excited
and angry on her husband and quarrel took place between them. On next day, the accused husband went to the Gariyadhar village, parental home
of accused and informed about the quarrel to her brother. When the accused husband was returning his home, he saw many people gathered in
front of his house, and came to know that his wife jumped into the Tapi river with their three children and their children died and his wife was
admitted in the hospital. Accordingly, the offence was registered at Varachha Road Police Station being C.R. No. 210/2007. Thereafter, after
collecting evidence and following all the necessary procedures, the Investigating Officer prepared charge-sheet and submitted the same before the
Court of learned Judicial Magistrate, Surat. Necessary police papers were handed over to the accused respondent. Since, the case was triable by
the Sessions Court, the learned Magistrate committed the case to the Sessions Court, Surat u/s 209 of the Code of Criminal Procedure, 1973.
The accused was charged for the offences punishable u/s 302 and 309 of the Indian Penal Code. The accused denied about her involvement in the
offence and requested for trial.
2.2 To prove the guilt against the accused, the prosecution has examined the following witnesses:
i) Dilip Bhagwanbhai Chauhan (Witness from Fire Station) (PW-1, Exh. 8).
ii) Sunil Manubhai Garasiya Witness from Fire Station)(PW-2, Exh. 9).
iii) Dhemarbhai Karsanbhai Rabari (PW-3, Exh. 10).
iv) Dr. Ronak Ravikumar Nagoriya (performed P.M.) (PW-4, Exh. 11).
v) Dr. Vijay Kaushik (Performed P.M.) (PW-5, Exh. 13).
vi) Bijan Vidyut Mishra (Complainant, I/c. F.B. Officer) (PW-6, Exh. 16).
vii) Anilbhai Vitthalbhai Prajapati (Husband of accused) (PW-7, Exh. 18).
viii)Prafulbhai Jerambhai Thesiya (Panch Witness) (PW-8, Exh. 30).
ix) Kishor Vitthal Prajapati (Brother in law of accused) (PW-9, Exh. 32).
x) Nanbaiben Vitthalbhai Prajapati (PW-10, Exh. 33).
xi) Purushottambhai Manilal Parmar(PW-11, Exh. 34).
xii) Jayendrasinh Aniruddhsinh Jadeja (I.O.) (PW-12, Exh. 37).
2.3 In order to support the case, the prosecution has produced on record in all 17 documentary evidence.
2.4 At the end of trial, after recording the statement of the accused u/s 313 of the Code of Criminal Procedure and hearing the arguments of behalf
of the prosecution and the defence, the learned Sessions Judge, Surat acquitted the respondent of all the charges leveled against him by judgment
and order dated 14th November 2008.
Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellant State has preferred the
present appeal.
Learned APP contended that the judgment and order of the Sessions Court is against the provisions of law. The Sessions Court has not
properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has proved
the whole ingredients of the evidence against the present respondent. The learned APP has also taken this Court through the oral as well as the
entire documentary evidence.
At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order
of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S.
Narayana Menon @ Mani Vs. State of Kerala and Another, the Apex Court has narrated about the powers of the High Court in appeal against
the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:
In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction.
Even while exercising an appellate power against a judgement of acquittal, the High Court should have borne in mind the well-settled principles of
law that where two view are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below.
Further, in the case of Chandrappa and Others Vs. State of Karnataka, the Apex Court laid down the following principles:
From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with
an appeal against an order of acquittal emerge:
[1] An appellate court has full power to review, reappreciate 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 curtain extensive powers of an appellate court in an appeal against acquittal. Such
phraseologies are more in the nature of ""flourishes of language"" to emphasis 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.
Thus, it is a settled principle that while exercising appellate power, even 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.
Even in a recent decision of the Apex Court in the case of State of Goa v. Sanjay Thakran and Anr. Reported in (2007)3 SCC 75, the Court
has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under:
From the aforesaid decisions, it is apparent that 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
arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two
views are possible, the Court of appeal would not take the view which would upset the judgement 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. A duty is cast upon the appellate court, in such circumstances,
to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is
connected with the commission of the crime he is charged with.
Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh and Ors. reported in AIR
2007 SCW 5553 and in Girja Prasad (Dead) by LRs v. state of MP reported in AIR 2007 SCW 5589. Thus, the powers which this Court may
exercise against an order of acquittal are well settled.
It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or to give fresh reasonings,
when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State
of Karnataka Vs. Hemareddy Alias Vemareddy and Another, wherein it is held as under:
This Court has observed in Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, that it is not the duty of the appellate court when it
agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court
expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.
Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not
necessary.
We have gone through the judgment and order passed by the trial court. We have also perused the oral as well as documentary evidence led
by the trial court and also considered the submissions made by learned Advocate for the appellant. It is the case of the prosecution that the
accused Chandrikaben tried to commit suicide since she was not staying with her husband.
From the evidence on record, it is clearly established that it was not established on record that there was intention on the part of the
respondent to commit murder of children. While concluding the evidence of the Investigating Officer the trial Court has observed that the
prosecution has miserably failed to prove the case against the accused. There are serious lacuna in the prosecution case.
We have also gone through the entire evidence as discussed by the trial court. Considering the evidence emerging from the record we are of
the considered opinion that the prosecution has failed to prove the case against the accused. There are serious omissions on the part of the
prosecution.
In the above view of the matter, we are of the considered opinion that the trial court was completely justified in acquitting the respondent of the
charges leveled against her u/s 302 of the Indian Penal Code. We find 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. We are, 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.