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CR.A/587/2001 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 587 of 2001
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 ?
=========================================================
HARKISHAN
RAMNIKLAL JOSHI - Appellant(s)
Versus
M/S.
ARUN INDUSTRIES , & 2 - Opponent(s)
=========================================================
Appearance
:
MR
ND GOHIL for
Appellant(s) : 1,
MR RR TRIVEDI for Opponent(s) : 1 - 2.
MR
BHAVESH P TRIVEDI for Opponent(s) : 1 - 2.
MR HL JANI Ld. APP for
Opponent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 15/01/2010
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 3.7.1999 passed by the learned JMFC, Gondal in
Criminal Case No. 189/1993 whereby the accused have been acquitted of
the charges under section 24 and 25 of the Water (Prevention and
Control of Pollution) Act, 1974, leveled against them.
2.0
The brief facts of the prosecution case are as under:
2.1
It is the case of the prosecution that the accused no. 1 is a
partnership firm and doing the business of De Oil Cake Solvent,
whereas, accused no. 2 and 3 are the partners of the said firm. For
the said process, the said industry was discharging 1500 liters of
polluted water per day in the surrounding areas and thereby they have
committed the said offence.
2.2
Therefore, a complaint with respect to the aforesaid offence was
filed against the respondents before the court of learned JMFC,
Dhoraji which was numbered as Criminal Case No. 189/1993. The trial
was initiated against the respondents.
2.3
To prove the case against the present accused, the prosecution has
examined 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
respondents of all the charges leveled against him by judgment and
order dated 3.7.1999.
2.5
Being aggrieved by and dissatisfied with the aforesaid judgment and
order passed by the trial Court the appellant has preferred the
present appeal.
3.0
It was contended by learned Advocate 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 Advocate has also taken this court
through the oral as well as the entire documentary evidence.
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,
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
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
Advocate for the appellant. The trial court while considering the
oral as well as documentary evidence has clearly observed that the
prosecution has not followed the mandatory provisions of Rule 27 of
the Rules. In the report Ex. 38, nothing is explained about the
Preserved Effluent Sample as per the provisions of Rule
27(1)(iii) of the Rules and the writer of Ex. 38 has not said
anything about it in his oral evidence. The prosecution has never
bothered to enquire regarding Ex. 65 whether water which was used by
the ori. Accused were used after purifying it or not. The
prosecution has miserably failed to prove the case against the
accused beyond any reasonable doubt. Even in the present appeal,
nothing is produced or pointed out to rebut the conclusion of the
trial Court. Thus, from the evidence itself it is established that
the prosecution has not proved its case beyond reasonable doubt.
6.0
Mr. ND Gohil learned Advocate 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, I am of the considered opinion that
the trial court was completely justified in acquitting the respondent
of the charges leveled against him.
7.0
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.
8.0
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. R & P to be sent back to the trial
Court, forthwith. Bail bond, if any, stands cancelled.
(Z.K.
SAIYED, J.)
mandora/
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