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CR.MA/453/2010 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 453 of 2010
with
CRIMINAL
APPEAL No. 102 of 2010
=========================================
STATE
OF GUJARAT
Versus
RAMSWARUP
RAMKISHOR SHAH
=========================================
Appearance :
MR.
L.B.DABHI, APP for Applicant(s) : 1,
MR JV
JAPEE for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 25/08/2010
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. 102 of 2010, which is directed against the judgment and order
dated 2.7.2009 rendered in Sessions Case No. 124 of 2007 by the
learned Additional Sessions Judge, Sabarkantha at Modasa, recording
acquittal of the Respondent accused ( the accused for short)
for the offences punishable under Sections 4 and 5 of the Explosive
Substances Act.
The
prosecution case as disclosed in the FIR and unfolded during trial
is that;
2.1 PSI
G.V.Paderia on 25.4.2001 while he was in Himmatnagar Town Police
Station, received a secret information to the effect that the
accused in his go-down has stored explosive substances namely
Detonators and Gelatin Detonators without any pass or permit. Upon
receipt of such information, a raid was arranged and according to
the prosecution case when the go-down of the accused was raided by
PSI G.V.Paderia and other members of the raiding party, in
presence of panchas, in all 236 Gelatin Detonators and 11 caps came
to be seized in presence of the accused and upon demand of any
license, pass or permit, nothing was presented by the accused. PSI
G.V.Paderia reported the said incident in the police station and
his FIR was registered. During the course of investigation,
statements of members of the raiding party and other relevant
witnesses were recorded. After obtaining due sanction from District
Magistrate, Sabarkantha at Himmatnagar, charge sheet came to be
filed in the Court of learned JMFC, Modasa. Since the offence is
exclusively triable by the Sessions Court, learned JMFC, Modasa
committed the case to the Sessions Court, Sabarkantha at
Himmatnagar, which was registered as Sessions Case No.124 of 2007
and the same was made over for trial to the Court of learned
Additional Sessions Judge, Sabarkantha, camp at Modasa.
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
has adduced its oral and documentary evidence. The prosecution
examined 11 witnesses and produced relevant documents detailed in
paragraph 5 and 6 respectively in the impugned judgment and order.
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 put to him by the trial Court and
stated that he was falsely implicated in this case. After
considering the evidence on record and the submissions advanced 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. L.B.Dabhi, learned APP
for the Applicant State of Gujarat, we have perused the impugned
judgment and order so also the record and proceedings of Sessions
Case No. 124 of 2007 called for by us from the trial Court vide
order dated 5.8.2010. 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.
At the
outset, perusing the record and proceedings of the case, it is clear
that so far as two panchas namely PW-1 Sikandarbhai Yusufbhai
Mansuri and PW-2 Natvarbhai Becharbhai Patel, who were Panchas
in seizure panchnama, did not support the case of the prosecution so
also the contents of the seizure panchnama and they were declared as
hostile witnesses. In the result, the entire prosecution case rests
upon the testimonies of first informant PSI G.V.Paderia and
other members of the raiding party, who were police officers
examined by the prosecution.
We have
perused the evidence of police witnesses, including the first
informant PSI G.V.Paderia. At the time when the raid was
conducted, Detonators and Gelatin Detonators as well as Caps came to
be seized. However, considering their evidence, and as observed by
the trial Court in the impugned judgment and order, no document came
to be recovered connecting the accused with the go-down. These
witnesses admitted in their testimonies that nothing was recovered
to show that at the time of the alleged seizure and recovery, the
accused was either owner of the go-down or was in possession of the
go-down. The trial Court therefore observed that the prosecution
failed to establish the nexus of the accused with the go-down from
where the alleged recovery was made.
Examining
the sanction (Exh. 28) issued by the District Magistrate under
Section 7 of the Explosive Substances Act, the trial Court observed
that the prosecution examined PW-4 Shaileshkumar Bhagabhai
Prajapati to prove the sanction (Exh.28), but considering the
evidence of this witness, he categorically stated that he had no
personal knowledge about the sanction. This witness further
admitted that he cannot say as to whether the sanctioning authority
issued the sanction after perusing the relevant papers. The trial
Court further observed that considering the sanction (Exh.28),
nothing emerges that before according the sanction, the sanctioning
authority had perused the relevant papers of this case. The trial
Court ultimately observed that the sanction as accorded was without
any application of mind. The trial Court further observed that no
endorsement was made in relevant police station register regarding
the receipt of the secret information and as admitted by PSI
G.V.Paderia, he categorically stated that regarding receipt of
secret information by him, no note was made either by him or by
police station officer in register maintained in the police station.
The trial
Court in the result examining, analyzing and scrutinizing the
oral and documentary evidence as adduced by the prosecution,
ultimately, came to the conclusion that the prosecution failed to
prove its case beyond any reasonable doubt and that the accused was
entitled to the benefit of doubt 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 SC 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. 102 of 2010 is dismissed.
(A.M.
Kapadia, J.)
(J.C.Upadhyaya,
J.)
Jayanti*
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