BHUPATBHAI BACHUBHAI CHAVDA & ANR.versusSTATE OF GUJARAT

                  [2024] 4 S.C.R. 322 : 2024 INSC 295

               Bhupatbhai Bachubhai Chavda & Anr.
                               v.
                        State of Gujarat
                     (Criminal Appeal No. 334 of 2019)
                                  10 April 2024
                [Abhay S. Oka* and Ujjal Bhuyan, JJ.]

                            Issue for Consideration
       High Court, if justified in overturning the order of acquittal.

                                   Headnotes
       Code of Criminal Procedure, 1973 – s. 378 – Appeal against
       acquittal – Interference by the appellate court, when:
       Held: Appellate Court can interfere with the order of acquittal only
       if it is satisfied after re-appreciating the evidence that the only
       possible conclusion was that the guilt of the accused had been
       established beyond a reasonable doubt – Appellate Court cannot
       overturn order of acquittal only on the ground that another view is
       possible – 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 – On facts, the High Court
       converted the acquittal of the appellants into conviction for offence
       punishable u/ss. 302/34 and s. 323 – High Court did not avert, if
       the view taken by the trial court was a plausible view that could
       have been taken based on evidence on record – High Court ignored
       that an order of acquittal further strengthens the presumption of
       innocence of the accused – High Court’s finding on the burden of
       proof is completely erroneous – Finding of the trial court that the
       evidence of the prosecution witness did not inspire confidence is
       a possible finding which could have been recorded on the basis
       of the evidence on record – 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 re-appreciating
       evidence – Thus, the order of acquittal of the appellants upheld –
       Judgment and order of the High Court set aside, and that of the
       trial court restored – Penal Code, 1860 – ss. 302 rw 34 and s.
       323. [Paras 6, 7, 10, 11]
       Evidence – Burden of proof – Discharge of, by the accused,
       when:
* Author
[2024] 4 S.C.R.                                                           323

        Bhupatbhai Bachubhai Chavda & Anr. v. State of Gujarat


     Held: Unless, under the 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 the burden
     was on the prosecution to prove the guilt of the accused beyond
     a reasonable doubt [Para 7]

                                List of Acts
     Code of Criminal Procedure, 1973; Penal Code, 1860.

                             List of Keywords
     Appeal against acquittal; Re-appreciate the evidence; Plausible
     view; Appellate Court; Burden of proof; Negative burden; Reverse
     onus clause; Statutory presumption; Discharge initial burden.

                            Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 334
     of 2019
     From the Judgment and Order dated 14.12.2018 of the High Court
     of Gujarat at Ahmedabad in CRLA No. 838 of 1997
                         Appearances for Parties
     D.N. Ray, Sr. Adv., Dillip Kumar Nayak, Ms. Disha Ray, Mrs. Sumita
     Ray, Advs. for the Appellants.
     Ms. Swati Ghildiyal, Ms. Devyani Bhatt, Advs. for the Respondent.
                Judgment / Order of the Supreme Court

                                Judgment
     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 incident occurred on 17th September
     1996. The allegation is that the appellants assaulted one Punjabhai
     (the deceased) with pipes and sticks. The deceased suffered a
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       large number of injuries and ultimately succumbed to the injuries.
       By judgment dated 5th July 1997, the Sessions 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 High Court. By the impugned judgment dated
       14th 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 34 and Section 323 of the IPC.
       By order dated 6th January 2020, this Court directed that the present
       appeal be listed for hearing. By order dated 18th May 2021, the
       application for suspension of sentence and grant of bail by the first
       appellant was rejected by this Court. However, this Court continued
       the order dated 21st 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 polishing. At about 9.45 pm on 17 th
       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. 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 morning of 18th 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 on
       18th September 1996. The High Court, in the impugned judgment,
       held that in his police statement, PW-4, had correctly stated that he
       was injured on 18th 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
[2024] 4 S.C.R.                                                           325

        Bhupatbhai Bachubhai Chavda & Anr. v. State of Gujarat


     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.
     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 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
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       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 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 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.
[2024] 4 S.C.R.                                                          327

        Bhupatbhai Bachubhai Chavda & Anr. v. State of Gujarat


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 to the effect that he
     was assaulted by a pipe on 18th September 1996 at 8.00 pm. The
     incident is of 17th 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 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 judgment and
    order dated 14th December 2018 of the High Court and set aside
    the conviction of the appellants. The judgment and order dated 5th
    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 no.1 shall be forthwith set at liberty unless he is required
    to be detained in connection with any other case.


     Headnotes prepared by: Nidhi Jain                  Result of the case:
                                                           Appeal allowed.