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CR.MA/3865/2010 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 3865 of 2010
In
CRIMINAL
APPEAL No. 605 of 2010
=========================================
STATE
OF GUJARAT
Versus
GIRNARI
HARIGIRI GURU SHANTIGIRI GOSWAMI
=========================================
Appearance :
MR.
R.C.KODEKAR, APP for Applicant(s) : 1,
None
for Respondent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 12/08/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)
By
means of filing this Application under Section 378 (1)(3) of the
Code of Criminal Procedure ( the Code for short), the Applicant
State of Gujarat has prayed to grant leave to file Criminal
Appeal No. 605 of 2010, which is directed against the judgment and
order dated 12.1.2010 rendered in Special (NDPS) Case No. 1 of 2009
by the learned Additional Sessions Judge, Fast Track Court No.2,
Ahmedabad (Rural), Camp at Viramgam, recording acquittal of the
Respondent accused ( the accused for short) of the offence
punishable under Sections 18 and 22 of the Narcotics Drugs and
Psychotropic Substances Act ( NDPS Act for short).
The
prosecution case as disclosed in the FIR and unfolded during trial
is that;
2.1 Pursuant
to a secret information received by PSI Detroj Mr. G.S.Vyas, a raid
was committed in the house of one Kirtigiri Kailashbharti Goswami
and contraband substances namely opiun weighing 20 grams, charas
weighing 12 grams and ganja weighing 15 grams came to be seized.
Pursuant to the recovery of those contraband substances, after
completing the required police investigation, charge sheet was filed
against the said accused – Kirtigiri Kailashbharti Goswami for the
offences punishable under the NDPS Act. At the end of trial, he was
acquitted. However, it is the prosecution case that since the
Respondent – accused wanted to marry one lady called Labhuben
sister of said accused Kirtigiri Kailashbharti Goswami, but
Kirtigiri Kailashbharti Goswami was not willing for said marriage,
and therefore, keeping grudge in his mind, the accused had planted
those contraband substances in the house of Kirtigiri Kailashbharti
Goswami and subsequently he himself had informed the police about
such contraband substances lying in the house of Kirtigiri
Kailashbharti Goswami and pursuant to such information Kirtigiri
Kailashbharti Goswami was booked in that case arising under the NDPS
Act. It is further the case of the prosecution that, since, at the
relevant time, the accused was absconded, he could not be tried
along with Kirtigiri Kailashbharti Goswami. Subsequently, the
accused came to be arrested and after the completion of
investigation, charge sheet came to be filed in the Court of learned
JMFC, Viramgam. Since the offence alleged against the accused is
exclusively triable by the Special Court, the learned JMFC, Viramgam
committed the case to the Special Court at Viramgam, which was
registered as NDPS Case No. 1 of 2009.
2.2 The
trial Court framed Charge against the accused to which he did not
plead guilty and claimed to be tried. Thereupon, the prosecution
adduced its oral and documentary evidence. The prosecution examined
9 witnesses detailed in paragraph 7 of the impugned judgment and
order and produced 21 documents. After the prosecution concluded
its oral evidence, the trial Court recorded further statement of the
accused under Section 313 of the Code and the accused in his further
statement denied generally all the incriminating circumstances
brought to his notice by the trial Court and stated that he was
falsely implicated in this case. After evaluating the oral and
documentary evidence on record and the submissions made on behalf of
both the sides, the trial Court came to the conclusion that the
prosecution failed to prove its case beyond any reasonable doubt and
ultimately recorded his acquittal, which has given rise to this
State Appeal.
We have
considered the submissions advanced by Mr. R.C.Kodekar, learned APP
for the Applicant State of Gujarat, we have perused the impugned
judgment and order so also the record and proceedings of NDPS Case
No. 1 of 2009, which we have called for vide order dated 22.7.2010.
This Court has also undertaken a complete and comprehensive
appreciation of all vital features of the case and the entire
evidence on record with reference to broad and reasonable
probabilities of the case.
Re-examining
the evidence on record, it clearly transpires that so far as the
accused is concerned, the only allegation levelled against him is
that on account of animosity, he planted the contraband substances
in the house of Kirtigiri Kailashbharti Goswami and passed on such
information to police, and pursuant to that, Kirtigiri Kailashbharti
Goswami was arrested and tried in connection with the offence under
the NDPS Act. To prove this charge, most of the witnesses examined
by the prosecution in this case are pertaining to the case qua
Kirtigiri Kailashbharti Goswami, who, as observed by the trial
Court, subsequently came to be acquitted from the said case. The
trial Court had therefore rightly observed that the evidence
involving Kirtigiri Kailashbharti Goswami adduced by the prosecution
in the instant case was of no significance. The prosecution
examined only 2 witnesses in connection with the allegation levelled
against the accused, namely PW-5 Ishwarbhai Kanabhai Prajapati
and PW-6 Alkaben Kirtigiri Goswami. Both these witnesses turned
hostile and did not support the prosecution case that it was the
accused who had planted the contraband substances in the house of
Kirtigiri Kailashbharti Goswami. It is further pertinent to note
that a raid was also conducted in the house of the accused and
nothing objectionable came to be found from his house. In the
aforesaid background, the trial Court came to the conclusion that
the prosecution failed to prove its case beyond any reasonable doubt
against the accused and ultimately recorded his acquittal.
On
overall view of the matter, according to us, the prosecution has
not been able to bring home the charge levelled against the accused
and the complicity of the accused for commission of the offence is
not established as there is no evidence against the accused to
connect him with the alleged crime.
In view of
the unsatisfactory evidence led by the prosecution, we are of the
considered opinion that no illegality or infirmity has been
committed by the trial Court in acquitting the accused of the
offences with which he was charged. We find ourselves in complete
agreement with the ultimate conclusion and the resultant order of
acquittal, as, in our view, no other conclusion was possible except
the one reached by the trial Court.
This
is an acquittal appeal. The principles which would govern and
regulate the hearing of appeal by the High Court against an order of
acquittal passed by the Trial Court have been very succinctly
explained by the Supreme Court in the matter of AJIT SAVANT
MAJAGAVI VS. STATE OF KARNATAKA, reported in AIR 1997
p.3255.
(a)
In an appeal against an order of acquittal, the High Court possesses
all the powers, and nothing less than the powers it possesses while
hearing an appeal against an order of conviction.
(b)
The High Court has the power to reconsider the whole issue,
reappraise the evidence and come to its own conclusion and findings
in place of the findings recorded by trial court, if the said
findings are against the weight of the evidence on record, or in
other words, perverse.
(c)
Before reversing the finding of acquittal, the High Court has to
consider each ground on which the order of acquittal was based and
to record its own reasons for not accepting those grounds not
subscribing to the view expressed by the trial Court that the
accused is entitled to acquittal.
(d)
In reversing the finding of acquittal, the High Court has to keep in
view the fact that the presumption of innocence is still available
in favour of the accused and the same stands fortified and
strengthened by the order of acquittal passed in his favour by the
trial Court.
(e)
If the High Court, on a fresh scrutiny and reappraised of the
evidence and other material on record, is of the opinion that there
is another view which can be reasonably taken, then the view which
favours the accused should be adopted.
(f)
The High Court has also to keep in mind that the trial Court had the
advantage of looking at the demeanour of witnesses and observing
their conduct in the Court, especially in the witness box.
(g)
The High Court has also to keep in mind that even at that stage, the
accused was entitled to benefit of doubt. The doubt should be such
as a reasonable person would honestly and conscientiously entertain
as to the guilt of the accused.
In
ANOKH SINGH vs. STATE OF PUNJAB, reported in AIR 1992
SC p.598, Supreme Court has held that in an appeal against
acquittal, the High Court should attach greater weight to
appreciation of evidence by the Trial Judge who had the occasion to
watch the demeanour of the witnesses.
It
is a cardinal principle of criminal jurisprudence that in an
acquittal appeal if other view is possible then also appellate
Court cannot substitute its own view by reversing the acquittal into
conviction, unless the findings of the trial Court are
perverse, contrary to the material on record, palpably wrong,
manifestly erroneous or demonstrably unsustainable. (See Ramesh
Babulal Doshi V. State of Gujarat (1996) 9 SCC 225). In the
instant case, the learned APP has not been able to point out to us
as to how the findings recorded by the trial Court are perverse,
contrary to material on record, palpably wrong, manifestly
erroneous or demonstrably unsustainable.
On
overall appreciation of evidence, this Court is satisfied that
there is no infirmity in the reasons assigned by the trial Court
for acquitting the accused. Suffice it to say that the trial Court
has given cogent and convincing reasons for acquitting the
accused and the learned A.P.P. has failed to dislodge the reasons
given by the trial Court and convince this Court to take a
view contrary to the one taken by the trial Court.
Seen
in the above context, we do not find any valid reason or
justifiable ground to interfere with the impugned judgment
and order acquitting the accused of the offences with which he was
charged.
For
the foregoing reasons, the application fails and accordingly it is
rejected. Resultantly, leave to appeal is refused, and as a
consequence thereof, Criminal Appeal no. 605 of 2010 is dismissed.
(A.M.
Kapadia, J.)
(J.C.Upadhyaya,
J.)
Jayanti*
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