1 apeal221.07.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR CRIMINAL APPEAL NO.221 OF 2007 The State of Maharashtra, (Through Station Officer, Police Station, Daryapur), District Amravati. .......... APPELLANT // VERSUS // 1.Smt. Vitthabai @ Shalinibai w/o. Shankarban Nimbhekar, Aged about 58 years. 2.Ku.Neetu d/o. Shankarban Nimbhekar, Aged about 20 years, 3.Ramesh s/o. Shankarban Nimbhekar, Aged about 34 years, ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:44:34 ::: 2 apeal221.07.odt 4.Pradeep s/o.Shankarban Nimbhekar, Aged about 27 years, All r/o. Banosa, Tq. Daryapur, District Amravati. .......... RESPONDENTS ____________________________________________________________ Mr.J.Y.Ghurde, A.P.P. for the Appellant/State. Mr.S.G.Loney, Advocate (Assist to Prosecution). Mr.Sumit Joshi, Advocate for Respondent Nos.1 to 4. ____________________________________________________________ ***** Date of reserving the Judgment : 17.04.2018. Date of pronouncement of the Judgment : .04.2018. ***** CORAM : R.K.DESHPANDE AND M.G.GIRATKAR, JJ.
ORAL JUDGMENT (Per M.G.Giratkar, J) :
1. The State has filed the present appeal challenging the Judgment of Ad-hoc Additional Sessions Judge No.4, Amravati in Sessions Trial No.50 of 1999 (old Sessions Trial No.24 of 1992), dt.12.4.2007, by which the respondents/accused came to be acquitted of the offences punishable under Sections 498-A and 304-B r/w. Section 34 of the Indian Penal Code.
2. The case of prosecution against the accused/respondent can be summarized as under :
Deceased Kusum, daughter of complainant Gopal Ram Bharti was married with accused no.4 Pradeep Nimbhekar on 7.12.1989. Accused no.1 Vitthabai Nimbhekar is mother of accused no.4 Pradeep. Accused no.2 Neetu Nimbhekar is the sister and accused no.3 Ramesh is the brother of accused no.4 Pradeep. After marriage of Kusum with accused no.4 Pradeep, she went to co-habit with him. She was treated properly for 1½ months after the marriage. However, thereafter, the accused persons started demanding fridge and motor cycle from deceased Kusum. Deceased informed her father. Her father told her that he would make arrangement in that regard at the time of Diwali festival. Accused persons continued ill-treatment for their demand.
3. In the month of March, deceased Kusum had gone to attend the marriage of Balwant Giri at Akola. At that time, she informed the complainant/her father about such harassment by accused persons. Complainant requested accused no.4 Pradeep not 4 apeal221.07.odt to ill-treat the deceased. On 3.10.1990, the complainant went to Daryapur to take Kusum with him for Diwali festival. At that time, members in the family were not present at their house. Accused no.2 Neetu told the complainant that Kusum should be taken only after Fridge, Cooler and Motor cycle were given. Complainant went back without taking Kusum with him. Deceased committed suicide by burning herself. In the night itself, father and brother of deceased reached to Daryapur. In the morning, complainant lodged report. Police Inspector Patil went to the spot of incident, prepared spot panchanama, inquest panchanama etc. He has recorded statement of witnesses. Thereafter, investigation was handed over to Crime Branch, Amravati. Further investigation was carried out by Police Inspector Uttam Manikrao Solanke (PW-8). He has recorded statement of Kanchanmala on 7.3.1991 and also recorded statement of Madhukar Hage on 16.3.1991. He also recorded supplementary statement of Gajanan Bharti on 19.3.1991. He has recorded statement of Shamrao Gawande and Gajanan Bharati on 29.3.1991. After complete investigation, charge sheet was filed before the Judicial Magistrate, First Class, who, in turn, committed the case to the Court of Sessions at Achalpur.
4. The said case was registered as Sessions Trial No.24 of 1992. The case was transferred to the Court of Sessions at Amravati and registered as Sessions Trial No.50 of 1999. The trial Court framed Charge at Exh.3. Prosecution examined nine witnesses. Statement of accused were recorded. They have denied material incriminating evidence. It is the defence of accused that, on the day of incident, complainant/father of the deceased came to fetch her. The deceased was not ready to go with her father. Her father was insisting her to accompany him on the very same day. He scolded and beat deceased Kusum. Therefore, in a fit of anger, Kusum committed suicide. To prove their defence, accused persons examined defence witness Sharad Prabhakarao Wankhade (DW-1). After hearing prosecution and defence, learned trial Court acquitted all the accused of the offences punishable under Sections 498-A and 304-B r/w. Section 34 of the Indian Penal Code. Hence, the present appeal by the State.
5. Heard Mr.J.Y.Ghurde, learned A.P.P. for the appellant/State. He has submitted that prosecution has proved by the evidence of Gopal Ram Bharti (PW-1), Gajanan Gopal Bharati (PW-3) and Ramrao Bajirao Gawande (PW-4) that the accused 6 apeal221.07.odt persons ill-treated the deceased for demand of Fridge, Cooler, Motor cycle etc. Due to constant harassment/ill-treatment of accused persons, deceased committed suicide. Learned A.P.P. has submitted that the deceased was in the custody of accused persons. They have not explained as to how the deceased died. It is submitted that the accused persons have not rebutted the presumption under Section 113B of the Indian Evidence Act. The learned A.P.P. has submitted that the deceased died within one year from the date of marriage. Her death was unnatural, due to burn injuries. Prosecution has proved that death was due to demand of dowry in the form of articles like Fridge, Cooler, Motor cycle etc. At last, the learned A.P.P. has submitted that prosecution has proved the material ingredients of Sections 304-B and 498A of the Indian Penal Code. Hence, the learned A.P.P. prayed to allow the appeal and convict the accused/respondents for the offences charged against them. In support of his submissions, learned A.P.P. has pointed out the following decisions :
a. State of Rajasthan .vs. Thakur Singh reported in 2014 LawSuit (SC) 501.
7 apeal221.07.odt b. Pathan Hussain Basha .vs. State of Andhra Pradesh reported in (2012) 8 SCC 594.
c. Smt. Shanti and another .vs. State of Haryana reported in AIR 1991 SC 1226.
6. Heard Mr.Sumit Joshi, learned Counsel for the respondents/accused. He has submitted that prosecution has failed to show that there was any cruelty or harassment for, or in connection with, any demand of dowry. Since prosecution failed to prove cruelty or harassment; therefore, the learned trial Court rightly acquitted the accused persons.
7. Mr.Sumit Joshi, learned Counsel for the respondents has submitted that the deceased was residing with her husband at Warud. She was not residing continuously at Daryapur. He has pointed out evidence of Ramrao Gawande (PW-4). Learned Counsel has submitted that prosecution has failed to prove any of the ingredients of Sections 498-A and 304-B of the Indian Penal Code. Therefore, learned trial Court rightly acquitted the accused persons. In support of his submission, learned Counsel for the respondents/accused pointed out the following decisions.
a) Biswajit Halder @ Babu Halder and Ors. vs. State of W.B. reported in 2007 ALL SCR 1596.
b) M.Srinivasulu .vs. State of A.P. reported in 2007 ALL MR (Cri) 2983 (S.C.).
c) Bakshish Ram and another .vs. State of Punjab reported in 2013 ALL SCR 2480.
d) Baijnath and Others .vs. State of Madhya Pradesh reported in 2017 ALL SCR (Cri) 104.
e) Dudh Nath Pandey .vs. State of U.P. Reported in 2014 ALL SCR (O.C.C.) 97.
f) Goati (PW-1) shows that accused no.4 Pradeep was in service in the S.T. Department. He was residing at Warud. His evidence shows that, after marriage, the accused persons gave good treatment to deceased for about 1½ months. Thereafter, they started demanding Fridge and Motor cycle.vindaraju @ Govinda .vs. State by Sriramapuram P.S. and another reported in 2012 ALL MR (Cri) 1385 (S.C.).
8. The evidence of Gopal Ram Bhar
9 apeal221.07.odt He has stated that when deceased Kusum met him in the marriage of Bhagwat, at that time, she disclosed him about the trouble given to her by in-laws. Thereafter, he went to the house of accused persons to fetch the deceased for Akhadi festival. At that time, deceased Kusum came to his house. She disclosed him that she was having much trouble from all the four accused. Her husband Pradeep had been to their house to take back the deceased. Thereafter, he went to Daryapur and convinced the accused that they should not give trouble to his daughter. Except this, there is no other evidence to prove cruelty by the accused persons.
9. Brother of deceased namely Gajanan Gopal Bharati (PW-
3) has stated in his evidence that he brought the deceased after death of her father-in-law. But she did not disclose anything. When she met in the marriage of Bhagwat, at that time she disclosed that her sister-in-law Neeta, mother-in-law Vitthabai and elder brother-in- law Ramesh used to say her that her brother did not give anything to her, but he had given only scrap. She disclosed that they were demanding Fridge and Motor cycle. She also stated that the members in the family of accused used to offer her food at the end. Whenever her matrimonial relations used to give new saree to her, 10 apeal221.07.odt her sister-in-law and mother-in-law used to wear it. Gajanan (PW-3) convinced her. Thereafter, he came to know about death of deceased. Except evidence of Gopal (PW-1) and Gajanan (PW-3) and to some extent, evidence of Ramrao (PW-4), no other evidence is adduced by prosecution to prove the guilt of accused persons on account of demand of Fridge and Motor cycle.
10. Ramrao Gawande (PW-4) has stated in his evidence that he called family members of deceased after death of her father-in- law. At that time, she told him that there was demand of Hero Honda from her in-laws. At that time, accused Vitthabai was saying that though brother of Kusum was on higher posting, still he has not given utensils like Cooker. Friends of Pradeep stated that he could not get Hero Honda. At that time, he had given Cooker as a gift.
11. From the evidence of Gopal (PW-1), Gajanan (PW-3) and Ramrao (PW-4), it is clear that their evidence are not consistent with each other. Gopal (PW-1) has stated that the deceased has disclosed him about the harassment by her mother-in-law, sister-in- law and brother-in-law. All three witnesses have not stated a single word against the husband of deceased. Evidence of Gopal (PW-1) 11 apeal221.07.odt and Gajanan (PW-3) shows that when the deceased had been to marriage of Bhagwat at Akola, at that time she complained that the accused persons were demanding Fridge and Motor cycle. At that time, her husband Pradeep/accused no.4 was with her. Gopal (PW-
1) himself has stated in his examination-in-chief that Pradeep did not ask him about the same. Gajanan (PW-3) also stated that her husband was with her. It was the natural reaction of father and brother of the deceased to inquire from her husband about ill- treatment and their demand of Fridge and Motor cycle etc. Both the witnesses have not stated anything about the ill-treatment on account of demand of Fridge and Motor cycle against accused no.4 Pradeep. They did not inquire from her husband about the demand of Motor cycle and Fridge.
12. Ramrao (PW-4) has stated in his evidence that he was residing at Daryapur and working in S.T. Department. Gajanan (PW-
3) was the Superior Officer when he was working at Akola in S.T. Department. He was mediator in the marriage of the deceased and accused Pradeep. He called family members of deceased after death of her father-in-law. At that time, the deceased told him that she was having ill-treatment at the hands of mother-in-law Vitthabai, sister-
12 apeal221.07.odt in-law Neetu and elder brother-in-law Ramesh. She stated that there was demand of Hero Honda from her in-laws. At that time, accused Vitthabai was saying that though brother of Kusum was on higher posting, still utensils like Cooker is not given. Friends of Pradeep were saying that he could not get Hero Honda. From this evidence, it is clear that Vitthabai or any other accused has not demanded Motor cycle as stated by Gopal (PW-1) and Gajanan (PW-3). If Ramrao (PW-4) was mediator then it was for him to inquire from the deceased as to what type of ill-treatment was given to her by the accused persons. He has stated in his evidence that accused no.4 Pradeep took deceased Kusum in the month of September. Thereafter, she used to visit Daryapur after interval of 4 to 8 days. Ramrao (PW-4) has admitted in his cross-examination that “I have earlier stated wrongly that Kusum stated that they have demanded Hero Honda.”
13. From the cross-examination of Ramrao (PW-4), it is clear that all the accused persons were present at his house. None of the accused demanded Hero Honda or Fridge as stated by Gopal (PW-1) and Gajanan (PW-3). Ramrao (PW-4) was the nearest friend of brother of deceased. It was natural for him to inquire from the 13 apeal221.07.odt accused persons as to why they were ill-treating the deceased. It was for the deceased also to narrate all types of ill-treatment by the accused persons. But nothing was stated by Ramrao (PW-4). The evidence of Gopal (PW-1) and Gajanan (PW-3) and Ramrao (PW-4) are not reliable in respect of ill-treatment given by the accused persons.
14. Gajanan (PW-3) has stated in his evidence that she disclosed him that family members used to serve food to her at the end. Her mother-in-law and sister-in-law used to wear her new sarees. All these are trivial things happening in the matrimonial homes. Moreover, Gopal (PW-1) and Ramrao (PW-4) have not stated about the same. Prosecution has not adduced any cogent evidence to prove the cruelty by the accused persons.
15. There is no dispute that the deceased died due to burning. Post Mortem report (Exh.20) is admitted by the defence. Evidence of Dr.Rajendrakumar Madangopal Bhattad (PW-9) shows that the deceased died due to 98 % burns. Some queries were made to him by the Investigating Officer. He replied the same saying that death of deceased due to asphyxia could be secondary to burns or 14 apeal221.07.odt strangulation. But, in the cross-examination, he has specifically admitted that he did not find strangulation marks during post mortem. His cross-examination further shows that, due to inhalation of Carbon Monoxide the patient becomes unconscious and when the burn process go on, the injury can be ante mortem. The person getting burns with kerosene in a small room with very small ventilation like a bathroom, there can be much more accumulation of Carbon Monoxide. Evidence of Dr.Rajendrakumar Bhattad (PW-9) shows that the deceased died due to burn injuries.
16. Khurshidmiya (PW-2) examined by prosecution at Exh.65. His evidence shows that he had been to the house of accused for some purpose. He heard noise of burning something towards the side of latrine. One lady gave shout to mother saying “aai vahini jalali” (sister-in-law burnt). Someone opened the door of bathroom and poured water. Therefore, it is clear that the deceased committed suicide by pouring kerosene on her person and setting herself on fire in a bathroom. Spot panchanama (Exh.74) shows that the deceased chained the door of bathroom from inside and committed suicide. Door of bathroom was broken. There was no chain from outside of the door. This itself shows that the deceased has committed suicide.
17. Prosecution has proved that the deceased was wife of accused no.4 Pradeep. There is no dispute that their marriage was performed on 7.12.1989. The deceased died on 4.10.1990. Death of deceased Kusum was due to burn injuries.
18. Prosecution has failed to prove cruelty or harassment in connection with demand of dowry. Therefore, all the ingredients of Section 304-B are not proved by the prosecution.
19. Mr.J.Y.Ghurde, learned A.P.P. for the appellant/State has pointed out decision in the case of Smt.Shanti and another .vs. State of Haryana reported in AIR 1991 SC 1226. It is observed by Hon’ble Supreme Court that the two appellants misbehaved with the father of deceased saying that he ought to have arranged Scooter and Television as a part of dowry. He was insulted and pushed out of house. Thereafter, the deceased was murdered and was cremated by two accused/ladies with the help of other three persons. They did not inform any of the relatives and hurriedly cremated the dead body. Therefore, Hon’ble Supreme Court held that the death was unnatural and in connection with demand of dowry. In the present case, evidence of Gopal (PW-1) shows that when he came to fetch 16 apeal221.07.odt the deceased, accused nos, 1, 3 and 4 were not present. Accused no.2 Neetu/sister-in-law were present. Accused no.2 told him that he had not given Motor cycle and Fridge. Therefore, they would not send the deceased for Diwali festival. As the elder family members were not present, therefore, he went back to village Kolambi. The defence appears to be probable. Sharad (DW-1) has stated in his evidence that Gopal (PW-1) was insisting the deceased to come with him. But the deceased was not ready. Therefore, Gopal scolded and even beaten her. Therefore, she committed suicide.
20. Learned A.P.P. Mr.Ghurde pointed out the decision in the case of Pathan Hussain Basha vs. State of Andhra Pradesh reported in (2012) 8 SCC 594. In the cited decision, Hon’ble Supreme Court has observed that “Mere denial cannot be treated as discharge of onus. Onus has to be discharged by leading proper and cogent evidence. Accused must show that death of deceased did not result from any cruelty or demand of dowry by accused. On facts, it was held that the accused failed to explain, as to how and under what circumstances deceased died, as well as conduct of husband immediately prior and subsequent to death of deceased. On the other hand, prosecution by reliable and cogent evidence has established 17 apeal221.07.odt guilt of the accused. Therefore, no interference with conviction of appellant is called for”. In the cited decision, both the Courts below convicted the accused for the offences punishable under Sections 304-B and Section 498-A of the Indian Penal Code. In the cited decision, cruelty was established persistent to dowry demand by the accused persons and cruelty and ill-treatment meted out to deceased for non-fulfillment of demand. In the present case, prosecution has failed to prove cruelty by accused persons. It appears from the evidence of Gopal (PW-1), Gajanan (PW-3) and Ramrao (PW-4) that they have stated about ill-treatment by the accused persons for the demand of Motor cycle and Fridge. It is pertinent to note that husband of deceased was present when she narrated to her father and brother. Both Gopal (PW-1) and Gajanan (PW-3) have not stated that husband of deceased demanded Motor cycle or anything. They have also not stated that her husband demanded anything. They did not inquire from her husband about their demand. Prosecution has to prove the guilt as defined under Sections 498-A and the ingredients of Section 304-B of the Indian Penal Code. Thereafter, burden shifts on the accused.
21. In the present case, prosecution has failed to prove any of the ingredients of Sections 304-B and 498-A of the Indian Penal Code. Moreover, the accused have examined defence witness. He has stated in his evidence that, on the day of incident, Gopal (PW-1) had been to fetch the deceased. Elder family members were not present. He was insisting the deceased to come with him, but the deceased was not ready. Gopal scolded the deceased and also beat her. Therefore, possibility cannot be ruled out that the deceased committed suicide due to behaviour of her father. Hence, the cited decisions by prosecution are not helpful.
22. In the case of Biswajit Halder @ Bablu Halder and Others .vs. State of W.B., 2007 ALL SCR 1596, Their Lordships of the Supreme Court have held that “mere evidence of cruelty and harassment is not sufficient to bring in application of Section 304-B of Indian Penal Code. It has to be shown in addition that such cruelty or harassment was for or in connection with the demand of dowry”. In the cited decision, there was no demand at the time of settlement of marriage and thereafter, there was demand of Colour Television, English Khat, VIP Bag etc. There was mere allegation against the accused persons. In the present case, there was no demand at the 19 apeal221.07.odt time of settlement of marriage in respect of Fridge and Motor cycle etc. Gopal (PW-1) and Gajanan (PW-3) have not stated that accused no.1 Vitthabai, accused no.3 Ramesh or husband of deceased namely Pradep demanded anything to them. They have only stated that the deceased told them that the accused persons were demanding Fridge and Motor Cycle and on that count, there was harassment. No specific act of cruelty was stated by the deceased to any of the witnesses.
23. Evidence of Ramrao (PW-4) shows that the deceased was residing with her husband/accused no.4 at Warud and she was visiting Daryapur after 4-8 days. Therefore, it is clear that she was not continuously residing with other accused persons. There was no specific allegation against her husband. Hence, the prosecution has miserably failed to prove harassment and cruelty by the accused persons on account of demand of Motor cycle, Fridge etc. Prosecution has failed to discharge its burden. Mere fact that the deceased died unnatural death in the matrimonial home within seven years of marriage is not sufficient to bring home the guilt of accused. Hon’ble Supreme Court in the case of Baijnath .vs. State of M.P., (2017 ALL SCR (Cri) 104) has observed as under :
20 apeal221.07.odt " The presumption (under S.113B of the Evidence Act)
as to dowry death would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable continuity of death. Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith.
A conjoint reading of the three provisions (viz. Sections 498A and 304B of IPC and S.113B of Evidence Act), predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113B of the Evidence Act against the accused. Proof of cruelty or harassment by the husband or his relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof. “
24. In respect of burden of proof, Mr.J.Y.Ghurde, learned A.P.P. has submitted that the deceased died in the matrimonial home. Therefore, it was for the accused persons to explain as to how she died. Learned A.P.P. has submitted that the deceased was in the custody of accused persons. The burden to prove the facts within the knowledge of accused persons is not discharged. The accused persons have not explained as to how the deceased died. Therefore, presumption arises against the accused persons. In support of his submission, he pointed out the decision in the case of State of Rajasthan vs. Thakur Singh reported in 2014 LawSuit (SC) 501.
25. First of all, prosecution has to prove it’s case and thereafter, burden shifts on the accused. This cardinal principle is laid down by Hon’ble Apex Court in the case of Baijnath and Others .vs. State of Madhya Pradesh (supra). In the present case, prosecution has failed to prove cruelty to the deceased by any of the accused persons. No particular instance of cruelty is stated by any of the witnesses. Ramrao (PW-4) was resident of Daryapur. He was mediator of the marriage between accused no.4 Pradeep and the deceased. Therefore, it was natural for Gopal (PW-1) and Gajanan (PW-3) and the deceased to have arranged meeting about demand of 22 apeal221.07.odt accused persons, but no such attempt was made. On the other hand, Ramrao (PW-4) has not stated that the deceased told him about demand of Motor cycle etc. by her husband. He has stated that mother-in-law of the deceased told him that article like Cooker was not given in the marriage. Cooker is not such an article which can be taken into consideration as a dowry.
26. Prosecution has failed to prove any of the ingredients of the offence charged against the accused. Probable defence is established by the accused persons by examining defence witness. He has specifically stated that, on the day of incident,Gopal (PW-1) had been to fetch the deceased. She was not ready to go with him. He scolded her and beat her. Therefore, possibility of committing suicide by deceased Kusum in a fit of anger cannot be ruled out.
27. Learned Counsel for the accused pointed out the Judgment of Hon’ble Supreme Court in the case of Dudh Nath Pandey .vs. State of U.P. reported in 2014 ALL SCR (O.C.C.) 97. Their Lordships have observed that “defence witnesses are entitled to equal treatment with those of the prosecution. The Court ought to have overcome their 23 apeal221.07.odt traditional instinctive disbelief in these defence witnesses. Quite often, they tell lies but so do the prosecution witnesses.”
28. Evidence of Medical Officer and Post Mortem report show that the deceased committed suicide by burning herself. Spot panchanama (Exh.74) shows that she has committed suicide in a bathroom by putting chain from inside. There was no chain from the outside to the door. The door was broken and fire was extinguished. This itself shows that the deceased herself committed suicide. Prosecution failed to prove cruelty on account of demand of dowry or cruelty which was of such a nature to drive her to commit suicide. Prosecution has failed to prove any of the ingredients of Section 304- B and 498-A of the Indian Penal Code. Mere factum of unnatural death in matrimonial home within seven years of marriage is not sufficient to bring home the guilt under Sections 304-B and 498-A of the Indian Penal Code.
29. This is an appeal against acquittal. Hon’ble Supreme Court has laid down guiding principles while deciding the appeal against acquittal. In the case of Govindaraju @ Govinda .vs. State 24 apeal221.07.odt by Sriramapuram P.S. and another reported in 2012 ALL MR (Cri) 1385 (S.C.), it is observed by Hon’ble Supreme Court as under :
“8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for. “
Hon’ble Supreme Court has further observed as under :
” The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in a case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. There are no jurisdictional limitations on the power of the Appellate Court but it is to be exercised with some circumspection. The paramount consideration of the Court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than that from the conviction of an innocent. If there is miscarriage of justice from the acquittal, the higher Court would examine the matter as a Court of fact and appeal while correcting the errors of law and in appreciation of evidence as well. Then the Appellate Court may even proceed to record the judgment of guilt to meet the ends of justice, if it is really called for. “
30. From the careful reading of the impugned Judgment, it is clear that the view taken by the learned trial Court is a correct view and therefore, no interference is called for. Hence, we are not inclined to allow the appeal and pass the following order.
// ORDER // The appeal is dismissed with no order as to costs.
The record and proceedings be sent back to the trial Court.