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CR.A/1788/2004 2/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1788 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
THE
STATE OF GUJARAT - Appellant(s)
Versus
MANGALBHAI
@ DATTUBHAI THAKORBHAI VASAVA - Opponent(s)
=========================================
Appearance
:
MS MINI
NAIR ADDITIONAL PUBLIC
PROSECUTOR for Appellant(s) : 1,
NOTICE NOT RECD BACK for
Opponent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 22/01/2010
ORAL
JUDGMENT
1. The
present appeal, under section 378 of the Code of Criminal Procedure,
1973, is directed against the judgment and order of acquittal dated
13.8.2004 passed by the learned Joint Judicial Magistrate, First
Class, Ankleshwar, in Criminal Case No.2805 of 2004, whereby the
accused has been acquitted from the charges leveled against him.
2. The
brief facts of the prosecution case are as under:
2.1 On
21.5.2004, when the complainant was slipping at about 12 o’clock,
due to some noise, he had awakened and seen a man, who was hidden
near sofa and therefore, he called so many person, residing adjacent
to him and caught the man named Mangabhai Vasava and called the
police. The offence is registered against him under Sections 457, 380
and 511 of the Indian Penal Code.
2.2 Therefore,
Criminal Case No.2805 of 2004 with respect to the aforesaid offence
was filed against the respondent before the learned Joint Judicial
Magistrate, First Class, Ankleshwar. Necessary investigation was
carried out and statements of several witnesses were recorded.
Chargesheet was filed against him before the court of learned JMFC.
The trial was initiated against the respondent.
2.3 To
prove the case against the present accused, the prosecution has
examined, in all 8 witnesses and also produced documentary
evidence.
2.4 At
the end of trial, after recording the statement of the accused under
section 313 of Cr.P.C., and hearing arguments on behalf of
prosecution and the defence, the learned trial Judge acquitted the
respondent of all the charges leveled against him by judgment and
order dated 13.8.2004.
2.5 Being
aggrieved by and dissatisfied with the aforesaid judgment and order
passed by the trial Court the appellant State has preferred the
present appeal.
3. It
was contended by learned APP that the judgment and order of the trial
Court is against the provisions of law; the trial Court has not
properly considered the evidence led by the prosecution and looking
to the provisions of law itself it is established that the
prosecution has proved the whole ingredients of the evidence against
the present respondent. Learned APP has also taken this court
through the oral as well as the entire documentary evidence.
4. At
the outset it is required to be noted that the principles which would
govern and regulate the hearing of appeal by this Court against an
order of acquittal passed by the trial Court have been very
succinctly explained by the Apex Court in a catena of decisions. In
the case of
M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in
(2006)6 SCC, 39,
the Apex Court has narrated about the powers of the High Court in
appeal against the order of acquittal. In para 54 of the decision,
the Apex Court has observed as under:
54.
In any event the High Court entertained an appeal treating to be an
appeal against acquittal, it was in fact exercising the revisional
jurisdiction. Even while exercising an appellate power against a
judgement of acquittal, the High Court should have borne in mind the
well-settled principles of law that where two view are possible, the
appellate court should not interfere with the finding of acquittal
recorded by the court below.
4.1 Further,
in the case of Chandrappa
Vs. State of Karnataka, reported in (2007)4 SCC 415
the Apex Court laid down the following principles:
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
Code of Criminal Procedure, 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 curtain extensive powers of an appellate court in an
appeal against acquittal. Such phraseologies are more in the nature
of flourishes of language to emphasis 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.
4.2 Thus,
it is a settled principle that while exercising appellate power, even
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.
4.3 Even
in a recent decision of the Apex Court in the case of State
of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75,
the Court has reiterated the powers of the High Court in such cases.
In para 16 of the said decision the Court has observed as under:
16. From
the aforesaid decisions, it is apparent that while exercising the
powers in appeal against the order of acquittal the Court of appeal
would not ordinarily interfere with the order of acquittal unless the
approach of the lower Court is vitiated by some manifest illegality
and the conclusion arrived at would not be arrived at by any
reasonable person and, therefore, the decision is to be characterized
as perverse. Merely because two views are possible, the Court of
appeal would not take the view which would upset the judgement
delivered by the Court below. However, the appellate court has a
power to review the evidence if it is of the view that the conclusion
arrived at by the Court below is perverse and the Court has committed
a manifest error of law and ignored the material evidence on record.
A duty is cast upon the appellate court, in such circumstances, to
re-appreciate the evidence to arrive to a just decision on the basis
of material placed on record to find out whether any of the accused
is connected with the commission of the crime he is charged with.
4.4 Similar
principle has been laid down by the Apex Court in the cases of
State
of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR
SCW 5553
and in Girja
Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589.
Thus, the powers which this Court may exercise against an order of
acquittal are well settled.
4.5 It
is also a settled legal position that in acquittal appeal, the
appellate court is not required to re-write the judgement or to give
fresh reasonigns, when the reasons assigned by the Court below are
found to be just and proper. Such principle is laid 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.
4.6 Thus,
in case the appellate court agrees with the reasons and the opinion
given by the lower court, then the discussion of evidence is not
necessary.
5. I
have gone through the judgment and order passed by the trial court. I
have also perused the oral as well as documentary evidence led before
the trial court and also considered the submissions made by learned
APP for the appellant-State. It appears from the record that the
charge framed against the present accused for the offence punishable
under Sections 457, 380 and 511 of the Indian Penal Code and from the
oral evidence, it also appears that looking to the place of incident,
which was happened in the house of complainant at midnight at 12:00
to 1:15 hrs. at night and the accused was trying to get some articles
from the house of complainant, was caught by the complainant. So far
as oral evidence of Chandubhai at Exhibit 5, he explained that due to
some noise, he waken up and other villagers were called out and
accused was caught by them and P.S.O. Sajod outpost was informed
through phone, but no article was recovered from the possession of
the accused by the police. Panchnama was drawn and from the oral
evidence of Investigating Officer at Exhibit 13, it appears that he
has fairly admitted before the learned trial Court in
cross-examination that no mob was there and the accused was not
produced by the villagers. Even the P.S.O., who was examined at
Exhibit 14, he has denied the fact that he was informed by the
telephone. From the record and evidence, it is revealed that no
stolen article was recovered from the possession of the accused and
it is not established before the trial Court that the accused was at
the place of offence. Thus, from the evidence itself it is
established that the prosecution has not proved its case beyond
reasonable doubt.
6. Ms.
Nair learned APP is not in a position to show any evidence to take a
contrary view of the matter or that the approach of the trial court
is vitiated by some manifest illegality or that the decision is
perverse or that the trial court has ignored the material evidence on
record.
7. In
the above view of the matter, I am of the considered opinion that the
trial court was completely justified in acquitting the respondent of
the charges leveled against him.
8. I
find that the findings recorded by the trial court are absolutely
just and proper and in recording the said findings, no illegality or
infirmity has been committed by it.
9. I
am, therefore, in complete agreement with the findings, ultimate
conclusion and the resultant order of acquittal recorded by the court
below and hence find no reasons to interfere with the same. Hence the
appeal is hereby dismissed. Bail bond, if any, stands cancelled.
Record and proceedings to be sent back to trial Court, forthwith.
(Z.K.
SAIYED, J.)
ynvyas
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