Gujarat High Court Case Information System
Print
CR.A/334/2002 6/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 334 of 2002
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 ?
=========================================
ASHWINBHAI
H ACHARYA
Versus
PRABHUDAS
KESHAVLAL & 2
=========================================
Appearance :
MR
UTPAL M PANCHAL for Appellant
MR AM PAREKH for Respondent Nos. 1 -
2
MR DC SEJPAL ADDL. PUBLIC PROSECUTOR for Respondent
No.3
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 22/02/2010
ORAL
JUDGMENT
[1] The
present appeal, under section 378 of the Code of Criminal Procedure,
1973, is directed against the judgment and order of acquittal dated
13.03.2001 passed by the learned Judicial Magistrate, First Class
(Municipal), Rajkot, in Criminal Case No.497 of 1989, whereby the
accused has been acquitted of the charges leveled against them.
[2] The
brief facts of the prosecution case are that the respondent Nos.1 and
2 are running a shop in Kandoi Bazzar, Rajkot in the name and style
of Nanda Stores . On 24.05.1989, the complainant visited the
shop of the respondent Nos.1 and 2 and he had taken the sample of
mukhvas from the respondent No.2 and as per the prescribed procedure,
the said sample was sent for analysis to the Public Analyst, Baroda.
The Public Analyst has reported that the sample was adulterated and
there was an addition of artificial colour. After obtaining sanction,
the complainant filed the complaint in the Court of learned Judicial
Magistrate, First Class (Municipal), Rajkot and came to the above
conclusion.
[3] To
prove the case against the present accused, the prosecution has
examined the witnesses and also produced documentary evidence.
[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
respondent of all the charges leveled against them by judgment and
order dated 13.03.2001.
[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.
[6] Heard
Mr.Utpal M. Panchal, learned advocate for the appellant and Mr.D. C.
Sejpal, learned APP for the respondent No.3 State.
[7] It
was contended by learned advocate for the appellant 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 offence against the present respondent. Learned advocate for the
appellant was contended that the trial Court has not properly
considered the relevant evidence on record and has not properly
appreciated the evidence in true spirit. It was also contended that
the trial Court has not considered the deposition of the panch
witness at Ex.90. It was further contended that trial Court has
committed an error in coming to the conclusion that there is
contradiction in the version of the complainant, witness and the
panch witness. He has further submitted that there is sufficient
evidence on record to convict the respondent Nos.1 and 2 and there is
no contradiction in the version of the the witnesses and the
deposition of the complainant is proper. Learned advocate for the
appellant has also taken this court through the oral as well as the
entire documentary evidence.
[8] 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.
[9] 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.
[10] 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.
[11] 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.
[12] 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.
[13] 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.
[14] 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.
[15] 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 has clearly recorded a
finding that there is contradiction in the version of the
complainant, witness and the panch witness. The trial Court has also
found that the prosecution has failed to prove that the vessel which
is used for analysis of the sample was dry and clean and the
prosecution has failed to follow prescribed procedure under Rule 14
of the PFA Rules. From the above conclusion, it appears that there
is serious contradictions in the oral evidences of the complainant,
witnesses and the panch witness. It also appears that the prosecution
has not followed Rule 14 of the PFA Rules. Thus, from the evidence
itself it is established that the prosecution has not proved its case
beyond reasonable doubt.
[16] Learned
advocate for the appellant 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.
[17] 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.
[18] 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.
[19] I,
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. Bail bonds, if any, stands cancelled. In
case, Record & Proceedings is received by this Court, the same
shall be returned to the trial Court forthwith.
[
Z. K. SAIYED,J. ]
(vijay)
Top