Sanjeev J.Thaker, J
1. Feeling aggrieved by and dissatisfied with the judgment and order of acquittal dated 28.10.2002, passed by the learned Additional Sessions Judge, Navsari, in Sessions Case No.11 of 2002, for the offences punishable under Section 302 of the Indian Penal Code, the appellant - State of Gujarat has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973 (for short, "the Code").
2. The prosecution case as unfolded during the trial before the lower Court is that the complainant-Manubhai Babubhai Gamit is residing with his family in Vansda taluka; that his younger brother-Bachu got married with Gitaben before fifteen years and he has two sons out of the said wedlock -Dharmesh and Tejas, out of whom, Tejas was aged 6 and studying in first standard; that on 8.11.2001 at 17.30 hours, Tejas went missing from the verandah (faliya) and when he was not found inspite of great efforts, the younger brother of the complainant informed about the same in the police chowky of Unai outpost on 10.11.2001; that on 11.11.2001, the complainant's brother Bachu and Arvind and other persons went to Navsari in search of Tejas and the complainant was searching for him in the village; the complainant's brother Sanmukh informed him that he last saw Tejas on 8.11.2001 at 5.30 hours; that when the complainant was at home, Gulab Magan of the said faliya came and informed one lady came to him and informed that one child's dead body is found in the isolated well of Kishanbhai; therefore, the complainant, Gulabbhai, Chandan Manji, Bhikha Devji, the complainant's brother Sanmukh etc. went to the field of Kishanbhai and saw in the well and found that the dead body of Tejas was floating therein; therefore, the complainant filed the complaint in Unai outpost.
3. After investigation, sufficient prima facie evidence was found against the accused person/s and therefore charge-sheet was filed in the competent criminal Court. Since the offence alleged against the accused person/s was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Sessions Court where it came to be registered as Sessions Case No.11 of 2002. The charge was framed against the accused person/s. The accused pleaded not guilty and came to be tried.
4. In order to bring home the charge, the prosecution has examined 10 witnesses and also produced 10 documentary evidence before the trial Court, which are described in the impugned judgment.
5. After hearing both the parties and after analysis of evidence adduced by the prosecution, the learned trial Judge acquitted the accused for the offences for which the charge was framed, by holding that the prosecution has failed to prove the case beyond reasonable doubt.
6. Learned APP for the appellant - State has pointed out the facts of the case and having taken this Court through both, oral and documentary evidence, recorded before the learned trial Court, would submit that the learned trial Court has failed to appreciate the evidence in true sense and perspective; and that the trial Court has committed error in acquitting the accused. It is submitted that the learned trial Court ought not to have given much emphasis to the contradictions and/or omissions appearing in the evidence and ought to have given weightage to the dots that connect the accused with the offence in question. It is submitted that the learned trial Court has erroneously come to the conclusion that the prosecution has failed to prove its case. It is also submitted that the learned Judge ought to have seen that the evidence produced on record is reliable and believable and it was proved beyond reasonable doubt that the accused had committed an offence in question. It is, therefore, submitted that this Court may allow this appeal by appreciating the evidence led before the learned trial Court.
7. As against that, learned advocate for the respondent/s would support the impugned judgment passed by the learned trial Court and has submitted that the learned trial Court has not committed any error in acquitting the accused. The trial Court has taken possible view as the prosecution has failed to prove its case beyond reasonable doubt. Therefore, it is prayed to dismiss the present appeal by confirming the impugned judgment and order passed by the learned trial Court.
8. In the aforesaid background, considering the oral as well as documentary evidence on record, independently and dispassionately and considering the impugned judgment and order of the trial Court, the following aspects weighed with the Court :
8.1 The prosecution has relied on the deposition of the mother of the deceased viz., Gitaben Bachubhai Gamit, who has been examined as P.W.2, vide Exh.15 and if her deposition is taken into consideration, she has stated that she married with Bachubhai and from the said marriage, she had two children i.e. Dharmesh (elder son) and deceased Tejas (younger son); and that at the time of incident, deceased Tejas was studying in 1st standard and was six years old; and that at the time of the incident, her husband was staying in Surat and used to come to the village only once in a month and when she used to go to Government borewell to fill water, she used to meet accused over there and slowly her relation with the accused was developed and they also got physically involved with each other and during night hours, the accused used to come to the residence of the said witness - Gitaben and whenever the accused used to come at night hours, she would wake up and go out and have physical relation with the accused and the said witness - Gitaben, who is a mother of the deceased Tejas, has also stated that once she was sleeping with the accused, the son of the deceased came to know and asked the witness that why is the accused sleeping with her and at that point of time, the said witness had informed the accused that the deceased Tejas has come to know about their physical intimacy and therefore he should not come to her residence and at that point of time, the accused informed the deponent - Gitaben that she should not worry; and that he will make Tejas understand and she should continue to have physical relation with the accused. The said witness has also further stated that on 08.11.2001, the deceased's son went missing and the deponent i.e. the mother of the deceased, mother-in-law, sister-in-law and elder sister-in-law ('Jethani') started searching for deceased Tejas.
At around 9:00 p.m., when the accused came at the house of the deponent from backdoor, the deponent thought that the Tejas had come and therefore, she opened the door and at that time, she saw the accused; and that the accused informed her that, her son - Tejas is with him as she has not kept physical relation with him since one month and therefore, Tejas is in his possession; and that if she will again keep physical relation with the accused, he (the accused) will keep Tejas safe; and that upon assurance, the deponent had kept physical relation with the accused. The Further, the accused had also threatened deponent that she should not inform this fact to anyone in the family, otherwise he will kill Tejas and her.
In her cross-examination, the deponent also does not explain as to why she did not file a missing complaint of Tejas on the same day and filed a complaint on the next day. There are lot of contradictions in the statement given by her before the police and in her deposition. In her police statement, she has not stated that the accused had told the deponent that if she will keep physical relation with him, he will treat Tejas well. She has also admitted that she had informed the police of his relation with the accused only on 13.11.2001. The dead body of Tejas was found on 11.11.2001 and the police came on the next day.
8.2 If the deposition of P.W.1 - Manubhai Babubhai Gamit, who has been examined vide Exh.8, is taken into consideration vis-a-vis the complaint - Exh.9, in his cross-examination, P.W.1 has stated that he had not informed that the accused had killed Tejas, because his brother's wife - Gitaben did not keep physical relation with the accused. He has also stated that he is not aware as to how Tejas has expired. He has also admitted in his cross-examination that Tejas has been murdered just because he may not reveal the relationship of the accused with Gitaben i.e. the mother of Tejas.
If the deposition of P.W.2 - Gitaben (Exh.15) is taken into consideration, she has stated that till 10th date, she did not doubt on any person of murder of Tejas.
8.3 The father of Tejas - Bachubhai Gamit has been examined as P.W.3, vide Exh.16. He has stated that on 9th date, when he had come home, his wife - Gitaben has not informed him as to how Tejas was missing.
8.4 If the oral evidence of P.W.7 - Dr.Ravindra Garasiya, who has been examined vide Exh.20, who has conducted the postmortem, is taken into consideration, it transpires that the cause of death of deceased - Tejas was - asphyxia due to strangulation (as per postmortem note - Exh.21).
8.5 In the present case, there is no eye witness to the incident. It is the case of the prosecution that the accused had taken deceased - Tejas on his cycle on 08.11.2001.
The prosecution has relied on the evidence of P.W.5 - Sanmukhbhai Babubhai, who has been examined vide Exh.18, P.W.4 -Babubhai Dhedabhai Gamit, who has been examined vide Exh.17 and P.W.2 - Gitaben Bachubhai Gamit, who has been examined vide Exh.15.
If the evidence of P.W.5 - Sanmukhbhai Babubhai (Exh.18) is taken into consideration, he has stated that he had seen deceased - Tejas when he had gone to graze the cattle at 5:30 p.m. Whereas, P.W.4 - Babubhai Dhedabhai Gamit (Exh.17) has stated that he had seen the accused with deceased - Tejas at 6.00 p.m. Whereas, P.W.2 - Gitaben Bachubhai Gamit (Exh.15) has stated that when she came back at 6.30 p.m., Tejas had come and stated that the accused was calling her and thereafter Tejas went for playing and did not return.
The prosecution has not proved that after 6.30 p.m., the deceased - Tejas has been seen with the accused; and that the prosecution has also not proved that after 6.30 p.m., the accused was with the deceased - Tejas.
8.6 The prosecution has mainly tried to put forward their case by evidence of mother of the deceased - Tejas viz., Gitaben - P.W.2 (Exh.15). In her deposition, she has admitted that she had physical relation with the accused; and that the accused used to come and have physical relation with her; and that since last one month, there was no physical relationship between them. The case of the prosecution was that just because the said witness - P.W.2 has refused for physical relation with the accused, the accused had taken deceased - Tejas and then killed him.
The prosecution is trying to rely on extra judicial confession of the fact that the accused had informed the said witness (P.W.2) that he had taken the deceased - Tejas with him. However, the fact remains that P.W.1 - Manubhai Babubhai Gamit (Exh.8) has clearly stated that on the date when Tejas went missing, he and other neighbours had gathered at the house of Tejas till 10 p.m and all had gone to search for Tejas and for the entire night, they did not sleep and searched for Tejas.
In his cross- examination, P.W.4 - Babubhai Dhedabhai Gamit (P.W.17) has also clearly stated that in the evening, Tejas did not come home and everybody was searching for him.
P.W.5 - Sanmukhbhai Babubhai (Exh.18) has also stated that Tejas had not come back and all were waiting at the residence thinking that Tejas would come back.
It also transpires from the evidence of P.W.1 - Manubhai Babubhai Gamit (Exh.8) that around 10 p.m., Kishore had gone to telephonically inform the father of Tejas and till the time he came back, everybody was waiting at the house of Tejas i.e. residence of P.W.2 - Gitaben Bachubhai Gamit. The said witness has also stated that there is no backdoor entry in the house of P.W.2 - Gitaben Bachubhai Gamit; and that there is only one door at the front side.
8.7 In view of the aforesaid fact, the Sessions Court has held that when the elders and others were there in the house, it cannot be believed that the accused had come to meet P.W.2 - Gitaben and had threatened her and had physical relation with her when the entire village was anxiously waiting for deceased - Tejas outside the house. Therefore, the Sessions Court has rightly not considered the version of P.W.2 - Gitaben Bachubhai Gamit, wherein she has stated that the accused himself had informed her that he has the custody of her son - Tejas. The prosecution has also not proved that the accused was found near the Well, where the dead body was found or that anybody had seen the accused near the Well where the dead body was found. The prosecution has also not been able to prove the 'last seen theory'. The fact remains that when the son - Tejas was missing, her mother Gitaben (P.W.2) also did not inform to any of the family members about the said fact. Such demeanor of Gitaben - P.W.2, who is a mother of the deceased - Tejas, does not inspire confidence. There is also no justification as to why Gitaben - P.W.2, a mother of the deceased - Tejas, filed a complaint at a belated stage. There is also no evidence of the presence of the accused near the place where the dead body of the deceased was found. The extra judicial confession of the accused also cannot be believed in view of the fact that the evidence of P.W.2 - Gitaben herself is doubtful. The prosecution has not been able to prove the fact that on 08.11.2001, the accused had called Gitaben and had informed her about the said fact that her son - Tejas is with him.
9.1 In the Case of State of Rajasthan V/s Bhanwar Singh Etc. Etc. reported in 2025(0) AIJEL -SC 75937, the Apex Court has observed in paragraph 39 as under:
"39. This Court in Babu Sahebagouda Rudragoudar v. State of Karnataka, (2024) 8 SCC 149, reiterated following principles governing interference by the appellate Court with a judgment of acquittal:-
41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles:
41.1. That the judgment of acquittal suffers from patent perversity;
41.2. That the same is based on a misreading/omission to consider material evidence on record; and
41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
42. The appellate court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial court."
9.2 In the Case of Babu Sahebagouda Rudragoudar and Others V/s State of Karnataka reported in 2024(0) AIJEL -SC 73556, the Apex Court has observed in paragraphs 37, 38 and 39 as under:
"37. This Court in the case of Rajesh Prasad v. State of Bihar and Another, (2022) 3 SCC 471 encapsulated the legal position covering the field after considering various earlier judgments and held as below: -
"29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words:
[ Chandrappa v. State of Karnataka, (2007) 4 SCC 415]
"42. 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 Criminal Procedure Code, 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 emphasize 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.".
38. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka, (2023) 9 SCC 581 this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: - "8.1.The acquittal of the accused further strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and
8.5. The appellate court can interfere with the order of acquittal only if it comes to finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."
39. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:-
(a) That the judgment of acquittal suffers from patent perversity;
(b) That the same is based on a misreading/omission to consider material evidence on record;
(c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."
9.3 In the Case of Ba llu @ Balram @ Balmukund V/s State of Madhra Pradesh, reported in 2024(0) AIJEL -SC 73457, the Apex Court has observed in paragraph 9 as under:
"9. Apart from that, it is to be noted that the present case is a case of reversal of acquittal. The law with regard to interference by the Appellate Court is very well crystallized. Unless the finding of acquittal is found to be perverse or impossible, interference with the same would not be warranted. Though, there are a catena of judgments on the issue, we will only refer to two judgments which the High Court itself has reproduced in the impugned judgment, which are as reproduced below:
"13. In case of Sadhu Saran Singh vs. State of U.P. (2016) 4 SCC 397, the Supreme Court has held that:-
"In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and ! aw. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. Appellate Court, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded."
14. Similar, In case of Harljan Bhala Teja vs. State of Gujarat (2016) 12 SCC 665 , the Supreme Court has held that:-
"No doubt, where, on appreciation of evidence on record, two views are possible, and the trial court has taken a view of acquittal, the appellate court should not interfere with the same. However, this does not mean that in all the cases where the trial court has recorded acquittal, the same should not be interfered with, even if the view is perverse. Where the view taken by the trial court is against the weight of evidence on record, or perverse, it is always open far the appellate court to express the right conclusion after reappreciating the evidence If the charge is proved beyond reasonable doubt on record, and convict the accused."
10. Further, learned APP is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored the material evidence on record. In above view of the matter, this Court is of the considered opinion that the Court below was completely justified in passing impugned judgment and order.
11. Considering the impugned judgment, the trial Court has recorded that there was no direct evidence connecting the accused with the incident and there are contradictions in the depositions of the prosecution witnesses. In absence of the direct evidence, it cannot be proved that the accused are involved in the offence. Further, the motive of the accused behind the incident is not established. The trial Court has rightly considered all the evidence on record and passed the impugned judgment. The trial Court has rightly evaluated the facts and the evidence on record.
12. 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 reasoning, when the reasons assigned by the Court below are found to be just and proper. Such principle is down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under:
"... This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) 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."
13. Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence at length is not necessary.
14. In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280, Supreme Court has held as under:
"The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."
15. 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 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 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.
16. In the case of Chandrappa v. State of Karnataka, reported in (2007) 4 SCC 415, the Hon'ble Apex Court has observed as under:
"42. 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 Criminal Procedure Code, 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."
17. The Hon'ble Apex Court in the recent decision in the case of Constable 907 Surendra Singh and Another V/s State of Uttarakhand reported in (2025) 5 SCC 433, has held in paragraph 24 as under:
"24. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial Judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."
18. 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, 1973 no case is made out to interfere with the impugned judgment and order of acquittal.
19. In view of above facts and circumstances of the case, on our careful re-appreciation of the entire evidence, we found that there is no infirmity or irregularity in the findings of fact recorded by learned trial Court and under the circumstances, the learned trial Court has rightly acquitted the respondent/s - accused for the elaborate reasons stated in the impugned judgment and we also endorse the view/finding of the learned trial Court leading to the acquittal.
20. In view of the above and for the reasons stated above, the present Criminal Appeal fails to prove its case and the same deserves to be dismissed and is dismissed, accordingly. Record & Proceedings be remitted to the concerned trial Court forthwith.
