Nilesh Vasarambhai Virani vs State Of Gujarat

Bela M. Trivedi, J

The appeal has been filed by the appellant - husband of the deceased Beenaben under section 372 of Cr.P.C. challenging the judgment and order dated 02.05.2019 passed by the 3rd Additional Sessions Judge, Navsari at Aahwa in Sessions Case No. 7 of 2018.

The case of the prosecution in nutshell before the Sessions Court was that the deceased Beenaben, wife of the appellant had an affair with accused No. 1 Sanjaybhai Bhanubhai Dobariya, and therefore, the appellant i.e. the husband of the deceased was threatening the deceased to give divorce. Because of such threat, the deceased had gone to the factory of the accused No. 1 situated at Laskana, where some altercations had taken place between the deceased and the accused No. 1, and thereafter the accused No. 1 allegedly strangulated her with electric wire, and then with the help of accused No. 2, the dead body of the deceased was thrown in a culvert near the crossing of Kunda at Saputara road. The complaint in respect of the same was filed by the complainant Vanrajbhai Motirambhai Raut who happened to the Sarpanch of the village. The same was registered as I-C.R. No. 6 of 2018 for the offence punishable under section 302, 201, 114 of the IPC. The Investigating Officer after collecting sufficient evidence against the accused, had submitted the chargesheet in the Court of Judicial Magistrate First Class at Vaghai, who committed the case to the Sessions Court where it was registered as Sessions Case No. 7 of 2018. The Sessions Court after appreciating the evidence on record had passed the impugned order acquitting both the accused from the alleged charges.

It is sought to be submitted by the learned advocate for the appellant that the Investigating Officer had not carried out the investigation properly and had not collected the evidence as required, as a result thereof, the Sessions Court has acquitted the accused, however, if the evidence of call details was appreciated, that would have connected the respondents - accused with the alleged crime. He also submitted that the Sessions Court had not taken into consideration the evidence of some of the witnesses, as also the evidence of the appellant who happened to the husband of the deceased.

Having regard to the submissions made by the learned advocate for the appellant and to the impugned judgment and order passed by the Sessions Court, it appears that though the prosecution had examined as many as 25 witnesses and produced 44 documentary evidence, the prosecution had failed to connect the respondents - accused with the alleged crime. It further appears that the entire case of prosecution rested on the circumstantial evidence and there was no link established to connect the respondent - accused with the alleged crime. The Sessions Court in the impugned judgment has pointed out as many as 31 circumstances which the prosecution had failed to prove. A very pertinent evidence as regards the place of incident in question and call details of the deceased and the accused No. 1 relied upon by the prosecution, was also not proved. There was also no evidence as regards the accused No. 1 having strangulated the deceased with the electric wire nor was there any evidence as regards the accused No. 2 having aided the accused No. 1 to commit the alleged crime. There was also no evidence as regards the accused having been seen lastly together with the deceased, nor was there any medical or scientific evidence collected and produced on record for establishing the guilt of the accused. Learned advocate Mr. Kikani for the appellant had also fairly submitted that the Investigating Officer having failed to carry out proper investigation, the prosecution had failed to establish the link between the accused and the crime.

It is needless to say that the Appellate Court has ample powers to re-appreciate the evidence adduced before the trial Court, in the appeal against acquittal, nonetheless when two views are possible normally the Appellate Court should not disturb the findings recorded by the trial Court. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed in para 6 as under : -

"6. This Court has held in Kalyan v. State of U.P., (2001) 9 SCC 632 :

"8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808, this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed:

"27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of "The Proof of Guilt" by Glanville Williams, second edition:

"I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos."

The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793, as is clear from the following observations:

"Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations."

"9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the non-interference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court."

In that view of the matter, the present appeal being devoid of merits, deserves to be dismissed and is dismissed accordingly. The judgment and order of acquittal passed by the 3rd Additional Sessions Judge, Navsari at Aahwa on 02.05.2019 in Sessions Case No. 7 of 2018 is hereby confirmed.