Gujarat High Court Case Information System
Print
CR.A/246/1994 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 246 of 1994
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 ?
=========================================
STATE
OF GUJARAT - Appellant(s)
Versus
BHAGVANDAS
ZAVERBHAI PATEL & 5 - Opponent(s)
=========================================
Appearance :
MR
HL JANI, LD. ADDL. PUBLIC PROSECUTOR
for Appellant(s) : 1,
MR
KB ANANDJIWALA for Opponent(s) : 1 -
6.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 23/11/2010
ORAL
JUDGMENT
The
appellant-State of Gujarat, has preferred this Appeal under
Section 378 of the Code of Criminal Procedure, 1973 against the
judgment and order of acquittal dated 06th November 1993
passed by the learned Additional Sessions Judge, Kheda camp at
Anand, in Special Case No.50 of 1991, whereby the learned Judge was
pleased to acquit the respondents-accused from the charges levelled
against them.
The
short facts of the prosecution case is that the complainant is a
member of scheduled caste. The case of the complainant is that to
satisfy the common intention, respondents-accused created unlawful
assembly. It is also the case of the complainant that the
respondents-accused insulted the complainant, beaten him and
threatened the complainant. It is also the case against the
respondents-accused that by creating unlawful assembly, they gave
feast blows to the complainant and also torn the clothes of the
complainant. The respondents-accused also used abusive language
against the complainant and called the complainant “Dheda”.
Because of this incident, the complainant lodged the complaint with
District Police Station, Anand who in turn send the said complaint
to Circle Police Inspector, Thasra. Therefore, a complaint against
the respondents-accused was registered punishable under Sections
14., 147, 149, 323, 504 of the Indian Penal Code and under Section
3(1)(10) of the Scheduled Castes and Scheduled Tribe (Prevention of
Atrocities)Act with Thasra Police Station being I-C.R. No.203 of
1991. Thereafter, as the Circle Police Inspector found the
respondents-guilty, charge-sheet was filed against the
respondents-accused before the Sessions Judge, Kheda camp at Anand.
After
filing closing pursis, statement under Section 313 of the Code of
Criminal Procedure, 1973 of the respondents-accused was recorded in
which the respondents-accused have denied the case of the
prosecution.
Thereafter
the trial was conducted before the learned Additional Sessions
Judge. The prosecution has examined the witnesses and also relied
upon the documentary evidence. After considering the oral as well as
documentary evidence, the learned Judge by his judgment and order
dated 06th November 1993 acquitted the
respondents-accused of the charges levelled against them.
Being
aggrieved and dissatisfied with the said judgment and order of
acquittal dated 06th November 1993 passed by the learned
Additional Sessions Judge, Kheda camp at Anand, the appellant-State
of Gujarat, has preferred the present Criminal Appeal.
I
have heard Mr.H.L. Jani, learned Additional Public Prosecutor,
appearing on behalf of the appellant-State. I have also gone
through the papers and the judgment and order passed by the Courts
below.
Mr.Jani
has taken me through the evidence of prosecution witnesses and the
documentary evidence and submitted that from the above evidence it
is established that the prosecution has successfully proved its case
beyond reasonable doubt. He has contended that the trial Court has
rightly held the respondents-accused guilty for the offences
alleged against them. He has contended that witnesses have supported
the case of the prosecution and the learned Sessions Judge has
committed grave error in disbelieving and discarding the evidence of
witnesses. He, therefore, contended that the judgment and order
passed by the learned Additional Sessions Judge, Kheda camp at Anand
is without appreciating the facts and evidence on record and is
required to be quashed and set aside.
I
have gone through the judgment and order passed by the trial Court.
I have also perused the reasons assigned by the learned Judge.
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.
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 court below.
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.
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.
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 reasoning, 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.
Thus,
in case the appellate court agrees with the reasons and the opinion
given by the lower court, then the detailed discussion of evidence
is not necessary.
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 Additional Public Prosecutor.
The
Sessions Court after appreciating the oral as well as documentary
evidence, has found that there are contradiction between N.C.
Complaint filed with Thasra Police Station at Exhibit 35 and the
complaint filed with the office of D.S.P. at Exhibit 28. Even
witnesses are interested witnesses. It is also observed by the
learned Judge that independent witnesses are not examined by the
prosecution. Even Prosecution Witness Nos.3 and 4 are declared
hostile. It is also observed that medical witness has explained that
injuries are simple in nature. Thus, the prosecution has failed to
establish prima-facie case against the respondents-accused.
Thus,
the appellant could not bring home the charge against the
respondents-accused in the present Appeal. The prosecution has
miserably failed to prove the case against the respondents-accused.
Thus, from the evidence itself it is established that the
prosecution has not proved its case beyond reasonable doubt.
Mr.H.L.
Jani, learned learned Additional Public Prosecutor for the
appellant, is not in a position to show any evidence to take a
contrary view in the matter or that the approach of the Sessions
Court is vitiated by some manifest illegality or that the decision
is perverse or that the learned Judge has ignored the material
evidence on record.
In
above view of the matter, I am of the considered opinion that the
Sessions Court was completely justified in acquitting the
respondents- accused of the charges leveled against them. I
find that the findings recorded by the Sessions Court are absolutely
just and proper and in recording the said findings, no illegality or
infirmity has been committed by it.
I
am, therefore, in complete agreement with the findings, ultimate
conclusion and the resultant order of acquittal recorded by the
Sessions Court and hence find no reasons to interfere with the same.
Hence the appeal is hereby dismissed.
In
view of above, present Appeal is dismissed. TThe
Judgment and Order of acquittal dated 06th
November 1993 passed by the learned Additional Sessions Judge, Kheda
camp at Anand, in Special Case No.50 of 1991 is hereby confirmed.
Record and Proceedings, if any, be sent back to the trial Court
concerned forthwith.
(Z.
K. Saiyed, J)
Anup
Top