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1996(2) Crimes 194 (SC)
SUPREME COURT OF INDIA
M.K. Mukherjee and S.P. Kurdukar, JJ.
Ramesh Babulal Doshi -Appellant
versus
State of Gujarat -Respondent
Criminal Appeal No. 32 of 1988
Decided on 2-5-1996
Held that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all, address itself to the question as to whether the reasons which weighed with the trial Court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above quoted conclusions. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusions that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellant Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely if the appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then of only -reappraise the evidence to arrive at its own conclusions. (Para 7)
Result: Appeal allowed.
JUDGMENT
M.K. Mukherjee, J-This appeal under Section 379 Cr.P.C. is directed against the judgment dated October 15/16, 1987 rendered by the Gujarat High Court in Criminal Appeal NO. 7 46 of 1981 whereby it reversed the acquittal of the appellant of the charges under Sections 302,201,212, 364, 365 and 397 IPC recorded in his favour by the Sessions Judge, Surat and convicted and sentenced him under Sections 302 and 201 IPC while upholding the acquittal of three others who were ,arraigned with him.
2. The prosecution case, so far as it is relevant for disposal of this appeal, is as under:
(a) Khodabhai Amarshi Patel (the deceased) used to reside in the city of Surat along with his wife Raiben (PW 2) and two children and carry on business in diamonds. On September 2.1980, (which was the Janmastami day) he left his residence in the morning with a packet containing diamonds worth Rs. 60,000/- after informing his wife that a person was waiting for him in the market. As he had not returned home till 3 P.M his wife requested Shamjibhai Manjibhai (PW 8) to enquire of his whereabouts. Shamjibhai first went to the office of Gordhanbhai Patel (PW 1), a cousin of the deceased, where he found Manjibhai Devjibhai (PW 10) sitting. He (PW 10) disclosed that at noon time he had seen the deceased near the market, sitting on the pillion of a scooter which was being driven by Ramesh (the appellant). They then went in search of the deceased in the market and other places but could not trace him out. Ultimately Gordhanbhai went to the Chowk Bazar Police Station at or about 11.45 P.M. and lodged a missing information (Ext. 63)
(b) In the meantime, some people of Patel community, to which the deceased belonged, having learnt that he was missing also started searching for him. In course of the search some of them went to the flat of the appellant, which was on the fourth floor of a building named 'Yagnapurush', at Rampura. On their query the appellant informed them that along with the deceased he had gone to the office of Jayantibhai Master to show him some diamonds but as his office was closed they came back and on the way the deceased got down at Rampura.
(c) On the following day, that is, on September 3, 1980 attempts were against made to trace out the deceased but without success. However, in course of the search Gordhandhai learnt from Mukesh Chandra Maganlal Parekh (PW 9) that on the previous day at or about 1 P.M. he had also seen the deceased going towards Athwa with the appellant on a scooter. Gordhanbhai then went to the Police Station at or about 11.30 P.M. and lodged a formal complaint (Ext. 14) alleging that the appellant had kidnapped the deceased to grab the diamonds he was having with him. Police Inspector Chandravadan Himatlal Jaiswal (P. W. 31) recorded that information and registered a case thereupon. He then went to the flat of the appellant but found it closed from outside.
(d) As the appellant was not traceable on the next day (September 4, 1980) also Sri Jaiswal started making enquiries about his relatives including his brother-in-law R.R. Seth who was residing at Shrinath Apartment, Timeliswad, Nanpura. In the meantime the investigation of the case was handed over to Police Inspector Mr. A.N, Vaghela (P.W. 43)
(e) After taking over investigation Inspector Vaghela, alongwith R. R. Seth and Panchas went to his (appellant's) flat in the early hours of September 5, 1981 only to find it still locked. After breaking open the lock he searched the flat but found nothing incriminating except a pair of blood stained trousers (Art. No. 1) hanging from a peg which he seized under a Panchnama (Ex. 53). After completion of search he locked the apartment and handed over the key to Sri Seth
(f) On the same day, at or about 2.00 P.M. he (P.W. 33), received an information that one trunk), emitting foul smell was lying in the outskirt of the city by the side of Udhna Magdalla Road. He therefore left for that place and reaching there found a trunk
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