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CR.A/2017/2008 6/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2017 of 2008
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
BIPIN
JESANG MAKWANA - Opponent(s)
=========================================================
Appearance :
MR
RC KODEKAR APP for Appellant(s) : 1,
None
for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 05/02/2009
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE KS JHAVERI)
1.0 This
appeal, under Section 378 of the Code of Criminal Procedure, 1973 is
directed against the judgment and order dated 09.05.2008 passed by
the learned Addl. Sessions Judge & Special Judge, Jamnagar in
Special (G.E.B.) Case No.4/2006, whereby, the respondent-accused has
been acquitted from the charges leveled against him.
2.0 The
brief facts of the prosecution case are as under:
2.1 On
04.02.2004 an inspection was carried out at the residential house of
the respondent-accused by the competent authority of the Gujarat
Electricity Board. At that time, it was found that the respondent had
committed theft of electricity. Therefore, on 09.07.2004, a complaint
with respect to the aforesaid offence was filed against the
respondent with G.E.B. Police Station under the provisions of The
Electricity Act, 2003. Necessary investigation was carried out and
statements of several witnesses were recorded. During the course of
investigation, as sufficient material was found against the
respondent, he was arrested and, ultimately, charge-sheet was filed
against him before the Court of learned JMFC, Kalyanpur. As the case
was exclusively triable by the Sessions Court, the same was committed
to the Sessions Court, Jamnagar and it was numbered as Special
(G.E.B.) Case No.4/2006. Trial was initiated against the respondent.
At the end of trial, the Court below acquitted the respondent of all
the charges leveled against him by impugned judgment and order.
2.2 Being
aggrieved by and dissatisfied with the aforesaid judgment and order
passed by the Sessions Court, the appellant State has preferred
the present appeal.
3.0 It
was contended by learned APP that the judgment and order of the Court
below is against the provisions of law; the Court below has not
properly considered the evidence led by the prosecution and that
looking to the provisions of law itself, it is established that the
prosecution has proved the ingredients of the offence against the
present respondent. Learned APP has also taken this Court through the
oral as well as the documentary evidence available on record.
4.0 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 S.C.C. 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 S.C.C. 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, re-appreciate 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 in the case of State of Goa V. Sanjay
Thakran & Anr. reported
in (2007) 3 S.C.C. 75, the Apex 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 judgment
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
A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs
Vs. State of MP reported in
2007 A.I.R. S.C.W. 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 judgment or to give
fresh reasonings, 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 S.C. 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.
5.0 We
have gone through the judgment and order passed by the trial Court.
We have also perused the oral as well as documentary evidence led by
the trial Court and also considered the submissions made by learned
Advocate for the appellant. The authorities of the Electricity Board
had carried out inspection at the residential house of the respondent
on 04.02.2004 and the complaint, with regard to the alleged incident,
came to be filed only on 09.07.2004, i.e. after a period of more
than five months. No explanation, much less any satisfactory
explanation, has come from the prosecution as regards the said delay
caused in filing the complaint. Moreover, the Officer who had carried
out the inspection, at the relevant point of time, was also not
authorized, either by the Board or by any other competent authority,
to carry out such inspection. Therefore, the said inspection was also
without any authority of law. Apart from that it also transpires that
the search / seizure was also not conducted in accordance with the
procedure established by law. Thus, the entire case of the
prosecution suffers from many irregularities. Mr. Kodekar, 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.
6.0 In
the above view of the matter, we are of the considered opinion that
the trial Court was completely justified in acquitting the respondent
of the charges leveled against him. We 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. We are, 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.
7.0 The
appeal is, accordingly, dismissed. Bail bonds, if any, shall stand
cancelled.
[K.
S. JHAVERI, J.]
[Z.
K. SAIYED, J.]
Pravin/*
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