Full Judgment Text
2024 INSC 295
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 334 OF 2019
Bhupatbhai Bachubhai Chavda & Anr. … Appellants
versus
State of Gujarat … Respondent
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECTS
1. The appellants, who are father and son, were
prosecuted for the offence punishable under Section 302,
read with Section 34 of the Indian Penal Code (IPC). The
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incident occurred on 17 September 1996. The allegation
is that the appellants assaulted one Punjabhai (the
deceased) with pipes and sticks. The deceased suffered a
large number of injuries and ultimately succumbed to the
Signature Not Verified
Digitally signed by
Anita Malhotra
Date: 2024.04.10
17:05:07 IST
Reason:
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injuries. By judgment dated 5 July 1997, the Sessions
Criminal Appeal no.334 of 2019 etc. Page 1 of 9
Court acquitted the appellants. Being aggrieved by the
judgment of the Sessions Court, the respondent - State of
Gujarat preferred an appeal against acquittal before the
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High Court. By the impugned judgment dated 14
December 2018, the High Court interfered and converted
the acquittal of the appellants into a conviction for the
offence punishable under Section 302, read with Section
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34 and Section 323 of the IPC. By order dated 6 January
2020, this Court directed that the present appeal be listed
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for hearing. By order dated 18 May 2021, the application
for suspension of sentence and grant of bail by the first
appellant was rejected by this Court. However, this Court
st
continued the order dated 21 January 2019 by which
exemption was granted to the second appellant from
surrendering.
2. The prosecution case in brief is that PW-1 Danabhai
is the brother of the deceased. He had two brothers. The
deceased was engaged in the business of diamond
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polishing. At about 9.45 pm on 17 September 1996,
when PW-1 was sitting in his pan-bidi shop, one
Vajsurbhai came to him by motorcycle and told him that
the appellants had assaulted the deceased. On hearing
this news, PW-1 went towards village Jhanjhmer. He met
his uncle Ramabhai on the outskirts of the village, who
was taking the deceased to the hospital by a tempo.
Criminal Appeal no.334 of 2019 etc. Page 2 of 9
According to the prosecution case, Karshanbhai (PW-4),
Dayabhai, Jivabhai and other villagers were sitting in the
tempo. The deceased was taken to the clinic of Dr. Goti at
Dhola village. As per his advice, the deceased was
immediately shifted to Bhavnagar in a private hospital.
The deceased succumbed to the injuries in the early
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morning of 18 September 1996.
3. The Trial Court disbelieved the testimony of PW-4
Karshanbhai for various reasons. In the impugned
judgment, the High Court noted that though, according to
the case of PW-4, he received injuries on 17th September
1996 at the hands of the accused, Dr Jagdishbhai (PW-5)
deposed that PW-4 informed him that he suffered injuries
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on 18 September 1996. The High Court, in the impugned
judgment, held that in his police statement, PW-4, had
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correctly stated that he was injured on 18 September
1996. Therefore, the statement he gave before the Court
and the statement given by the doctor were meaningless.
The High Court held that although the number of persons
who witnessed the incident have not been examined, the
appellants failed to adduce any evidence to falsify the
prosecution's version. By the impugned judgment, after
overturning the acquittal of the appellants, the High Court
sentenced them to undergo life imprisonment.
Criminal Appeal no.334 of 2019 etc. Page 3 of 9
SUBMISSIONS
4. The learned senior counsel appearing for the
appellants pointed out that the High Court, while
overturning the order of acquittal, had relied upon the
police statement of PW-4 and had erroneously put the
burden on the appellants to adduce evidence to show their
innocence. He submitted that the entire approach of the
High Court while dealing with an appeal against acquittal,
is completely erroneous. He submitted that there is no
finding recorded by the High Court that the only possible
view which could be taken based on the evidence was that
the guilt of the appellants had been proved. The learned
senior counsel submitted that the High Court had erred in
overturning the order of acquittal.
5. The learned counsel appearing for the State
vehemently submitted that in an appeal against acquittal,
the High Court was duty-bound to reappreciate the
evidence, and after finding that evidence of PW-4, an eye-
witness, completely inspires confidence, the High Court
rightly interfered with the order of acquittal.
OUR VIEW
6. It is true that while deciding an appeal against
acquittal, the Appellate Court has to reappreciate the
evidence. After re-appreciating the evidence, the first
question that needs to be answered by the Appellate Court
Criminal Appeal no.334 of 2019 etc. Page 4 of 9
is whether the view taken by the Trial Court was a
plausible view that could have been taken based on
evidence on record. Perusal of the impugned judgment of
the High Court shows that this question has not been
adverted to. Appellate Court can interfere with the order
of acquittal only if it is satisfied after reappreciating the
evidence that the only possible conclusion was that the
guilt of the accused had been established beyond a
reasonable doubt. The Appellate Court cannot overturn
order of acquittal only on the ground that another view is
possible. In other words, the judgment of acquittal must
be found to be perverse. Unless the Appellate Court
records such a finding, no interference can be made with
the order of acquittal. The High Court has ignored the
well-settled principle that an order of acquittal further
strengthens the presumption of innocence of the accused.
After having perused the judgment, we find that the High
Court has not addressed itself on the main question.
7. The second error the High Court committed is found
in paragraph 23 of the impugned judgment. The High
Court has gone to the extent of recording a finding that the
appellants have failed to adduce evidence in their support,
failed to examine the defence witness and failed to
establish falsity of the prosecution's version. This concept
of the burden of proof is entirely wrong. Unless, under the
Criminal Appeal no.334 of 2019 etc. Page 5 of 9
relevant penal statute, there is a negative burden put on
the accused or there is a reverse onus clause, the accused
is not required to discharge any burden. In a case where
there is a statutory presumption, after the prosecution
discharges initial burden, the burden of rebuttal may shift
on the accused. In the absence of the statutory provisions
as above, in this case, the burden was on the prosecution
to prove the guilt of the accused beyond a reasonable
doubt. Therefore, the High Court's finding on the burden
of proof is completely erroneous. It is contrary to the law
of the land.
8. We have carefully examined the evidence of the
material prosecution witnesses. PW-1 Danabhai stated
that after he was informed in the night around 9 O’clock
about the assault on the deceased by one Vajsurbhai, he
proceeded by his bicycle. He stated that when he reached
Jhanjhmer, he found that his deceased brother was laid in
a tempo of Ramabhai. He stated about the presence of
Arjanbhai and Jivabhai. He stated that no one informed
him about the incident at that time. He thereafter
described how the deceased was taken to the hospital of
Dr Goti and thereafter to a private hospital in Bhavnagar.
PW-1 deposed that PW-4 Karshanbhai went with him to
Bhavnagar, and in the hospital of Dr Rana, PW-4 informed
PW-1 that the appellants had assaulted the deceased by
Criminal Appeal no.334 of 2019 etc. Page 6 of 9
using a stick. He stated that though PW-4 informed him
that he was present at the time of the incident, he did not
tell him about the assault on him by the accused. Thus,
PW-1 did not state that PW-4 was present when he reached
the place where he found that the deceased was laid in a
tempo, and according to his version, PW-4 came to
Bhavnagar. Though PW-4 stated that PW-1 came on a
bicycle and came to Dhola with them, the version of PW-1
is that PW-4 joined him at Bhavnagar. This creates a
doubt about the presence of PW-4 at the time of the
incident. Importantly, one Vajsurbhai, who informed PW-
1 about the assault on the deceased, has not been
examined as a witness.
9. PW-4 admitted that there is an ongoing litigation
about his family's land between the appellants and his
family. PW-4 claimed that just before the fatal blow was
inflicted on the deceased, a blow was given to the witness
by pipe around 8 pm on the date of the incident. However,
PW-5 Dr Jagadishbhai stated that when he examined PW-
4 on 19th September 1996, the history given by PW-4 was
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to the effect that he was assaulted by a pipe on 18
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September 1996 at 8.00 pm. The incident is of 17
September 1996. The High Court has completely brushed
aside this statement of PW-5 by observing that once the
police recorded statements of the Doctor and PW-4, the
Criminal Appeal no.334 of 2019 etc. Page 7 of 9
statements of PW-4 and the Doctor before the Court
became meaningless. As is apparent from Section 162 of
the Code of Criminal Procedure, 1973 (CrPC), statements
recorded by police under Section 161 of the CrPC cannot
be used for any purpose except to contradict the witness.
The Trial Court gives several reasons for discarding the
testimony of PW-4. His prior enmity with the appellants
and his failure to report the incident to the police,
notwithstanding available opportunities, are also the
factors considered by the Trial Court.
10. Therefore, after having perused the evidence of the
material prosecution witnesses, in our view, the finding of
the Trial Court that the evidence of PW-4 did not inspire
confidence is a possible finding which could have been
recorded on the basis of the evidence on record. There was
no reason for the High Court to overturn the order of
acquittal when the findings of the Trial Court were possible
findings that could be arrived at after reappreciating
evidence.
11. Therefore, the appeal must succeed. We set aside the
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judgment and order dated 14 December 2018 of the High
Court and set aside the conviction of the appellants. The
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judgment and order dated 5 July 1997 of the Trial Court
is restored. The appeal is, accordingly, allowed. The bail
bonds of the appellant no.2 are cancelled. The appellant
Criminal Appeal no.334 of 2019 etc. Page 8 of 9
no.1 shall be forthwith set at liberty unless he is required
to be detained in connection with any other case.
….…………………….J.
(Abhay S. Oka)
…..…………………...J.
(Ujjal Bhuyan)
New Delhi;
April 10, 2024.
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