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CR.A/947/1993 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 947 of 1993
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
SURESHBHAI
S PATEL - Opponent(s)
=========================================
Appearance :
MR
HL JANI, LD. ADDL. PUBLIC PROSECUTOR
for Appellant(s) :
1,
NOTICE SERVED for Opponent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 26/11/2010
ORAL
JUDGMENT
The
appellant-State of Gujarat, has preferred the present Appeal under
Section 378 of the Code of Criminal Procedure, 1973 against the
judgment and order of acquittal dated 05th May 1993
passed by the learned Judicial Magistrate First Class, Pardi, in
Summary Case No.2549 of 1992, whereby the learned Magistrate was
pleased to acquit the respondent-accused of the charges levelled
against him.
The
short facts of the prosecution case is that the complainant-Police
Sub Inspector, Pardi, was on duty at night hours and while he was on
patrolling, he received an information that Truck bearing
No.17T-3309 is proceeding from Daman and the Truck is carrying
prohibited goods. On the basis of information received, the
complainant along with his staff members had gone towards village
Saran and kept watch on that road. It is also the case of the
complainant that when the said Truck arrived, it was stopped by the
complainant in presence of panchas. It is also the case of the
complainant that the drive and the person sitting with the driver
ran away on the spot. It was found that the Truck was carrying 309
boxes of imported liquor worth Rs.03,24,440/-.
Therefore,
a complainant with respect to the aforesaid offences was filed
against the respondent.
Necessary investigation was carried out and statements of Panchas
were recorded. Ultimately, the respondent-accused
was charge-sheeted before
the Court of learned Judicial Magistrate First Class, Pardi, which
was numbered as Criminal Case No.2549 of 1992. Thereafter, trial
was initiated against the respondent-accused.
To
prove the case of the prosecution, prosecution has produced oral as
well as documentary evidence. After considering the oral as well as
documentary evidence, the learned Magistrate has acquitted the
respondent-accused of the charges levelled against him by the
judgment and order dated 05th May 1993.
Being
aggrieved and dissatisfied with the said judgment and order dated
05th May 1993 passed by the learned Judicial Magistrate
First Class, Pardi in Criminal Case No.2549 of 1992, the
appellant-State of Gujarat, has preferred the above mentioned
Criminal Appeal.
Heard
Mr. H.L. Jani, learned Additional Public Prosecutor, appearing on
behalf of the appellant-State. I have also gone through the papers
produced on record and the Judgment and order passed by the Trial
Court.
Mr.
H.L. Jani, learned Additional Public Prosecutor for the appellant,
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 witnesses have
supported the case of the prosecution and the learned Magistrate has
committed grave error in disbelieving and discarding the evidence of
witnesses. He, therefore, contended that the judgment and order
passed by the learned Magistrate is without appreciating the facts
and evidence on record and therefore, is liable to set aside.
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.
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.
Even
in a recent decision of the Apex Court in the case of State
of Goa Vs. 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 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
counsel for the appellant.
The
Trial Court has, after appreciating the oral as well as documentary
evidence, found that pancha witness – Kantibhai Kikabhai
declared hostile. It is also observed by the learned Magistrate that
panch witness Kantibhai did not support the Panchnama at Exhibit 7.
It is also observed by the learned Magistrate that the complainant
has not mentioned as to how many bottles of which brand he has
seized. It is also observed by the learned Magistrate that when
panchas are turned hostile and did not support the case of the
complainant, it would not be appropriate to solely rely upon the
evidence of complainant. Thus, the prosecution has failed to prove
its case beyond reasonable doubt against the respondent-accused. The
Trial Court has observed that there are serious lacuna in the oral
as well as documentary evidence of prosecution. Nothing is produced
on record of this appeal to rebut the concrete findings of the Trial
Court.
Thus,
the appellant could not bring home the charges against the
respondent-accused in the present appeal. The prosecution has
miserably failed to prove the case against the respondent-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 Additional Public Prosecutor, is not in a position to
show any evidence to take a contrary view in 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
above view of the matter, I am of the considered opinion that the
Trial Court was completely justified in acquitting the
respondent-accused of the charges levelled 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 find no reasons to interfere with the same.
Hence the appeal is hereby dismissed. The
Judgment and Order of acquittal dated 05th
May 1993 passed by the learned Judicial Magistrate First Class,
Pardi, in Criminal Case No.2549
of 1992 is hereby confirmed. Bail bond, if any, shall stand
discharged. Record and Proceedings, if any, be sent back to the
trial Court concerned forthwith.
(Z.
K. Saiyed, J)
Anup
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