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CR.A/702/1998 7/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 702 of 1998
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
RAMANBHAI
ABHESING PARMAR - Opponent(s)
=========================================================
Appearance
:
MR
MAULIK NANAVATI, APP for Appellant(s) : 1,
MR SK BUKHARI for
Opponent(s) : 1,
MR EE SAIYED for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 13/01/2010
ORAL
JUDGMENT
1.0 The
present appeal, under section 378 of the Code of Criminal Procedure,
1973, is directed against the judgment and order of acquittal dated
04.07.1998 passed by the learned J.M.F.C., 4th Court,
Vadodara, in Criminal Case No. 1705 of 1987, whereby the respondent
– accused have been acquitted of the charges alleged against him.
2.0 The
brief facts of the prosecution case are as under:
2.1 The
brief facts of the prosecution case, in short, is that on 6.10.1985
at 22.00 hours the accused was driving the Bus No. GRQ 9944 of IPPL
Company in a rash and negligent manner and dashed with bullet Motor
Cycle No. GUL 2223 on the main Road, I.O.P. Boiler Char Rasta. In the
said accident driver of the motor cycle was succumbed to the said
injury and the Pillion rider on the motor cycle had received serious
injuries. In the said accident the motor cycle and the bus both
sustained damage to the tune of Rs.2000/- and Rs.4000/- respectively.
Thereupon the complaint under Section 304-A, 337, 279, 427 of I.P.
Code and under Section 112 116 of the Bombay Motor Vehicle Act has
been filed against the respondent accused.
2.2
Thereafter necessary investigation was carried out and statements of
several witnesses were recorded. During the course of investigation,
respondents were arrested and, ultimately, charge-sheet was filed
against them before the court of learned Magistrate. The trial was
initiated against the respondent.
2.3 To
prove the case against the present accused, the prosecution has
examined the 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 Magistrate acquitted the
respondent of all the charges leveled against him by judgment and
order dated 04.07.1998.
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.
3.0 It
was contended by the 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. He has
contended that there are all direct and indirect evidence connecting
the accused in the alleged crimes. He has contended that the trial
Court has not considered the case of the prosecution in a proper
manner and he has discarded the evidence of injured witness.
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 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
judgment 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 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 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 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 SC 1417.
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.
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 by
the trial court and also considered the submissions made by learned
APP for the appellant-State and learned Advocate for the
respondent-State. I have also gone through the oral evidence of
injured witness and other witnesses who were the passengers in the
Bus. Just to prove the case of offence under Section 279 I.P. Code
the main ingredients is required to be proved that the driver was
driving his vehicle in a rash and negligent manner. When the oral
evidence of witness is kept silent on this issue then the respondent
driver cannot be held responsible and penalised for the offence
under Sections 279, 337 and 304-A of I.P. Code. The oral as well as
documentary evidence produced by the prosecution is not helpful to
the case of prosecution and in my opinion this is not a fit case to
interfere with the findings recorded by the trial Court.
The
trial Court has clearly observed that there is no sufficient to
establish the fact that the driver was driving his vehicle in a rash
and negligent manner. The trial Court has clearly found that from
the record produced before the trial Court it clearly appears that
the story putforward by the prosecution is not believable.
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.
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.
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.
I
am, therefore, in complete agreement with the findings, ultimate
conclusion and the resultant order of acquittal recorded by the
court below and hence I find no reasons to interfere with the same.
Hence the appeal is hereby dismissed. The Judgment and order dated
04.07.1998 passed by the learned Magistrate, in Criminal Case No.
1705 of 1987 is hereby confirmed. Bail Bonds, if any, shall stand
cancelled. R & P to be sent to the trial Court.
(Z.K.
SAIYED, J.)
sas
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