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CR.A/57/1996 1/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 57 of 1996
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
BHAVSING
KATHADJI RAJPUT & 1 - Opponent(s)
=========================================================
Appearance
:
MR
MG NANAVATI, LD. ADDL. PUBLIC PROSECUTOR
for
Appellant(s) : 1,
NOTICE SERVED for Opponent(s) : 1 - 2.
MR
YATIN SONI for Opponent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 17/02/2010
ORAL
JUDGMENT
The
appellant has preferred this Appeal under Section 379 of the Code of
Criminal Procedure, 1973 against the judgment and order of acquittal
dated 30th September 1995 passed by the learned Chief
Judicial Magistrate, Rajkot, in Criminal Case No. 2999 of 1987,
whereby the learned Magistrate has acquitted the respondents-accused
of the charges levelled against them.
The
short facts of the prosecution case is that the original
complainant-present appellant is residing at Manhar Plot, Sheri
No.6 with his brothers and mother. They have a Soda shop at Manhar
Plot, Sheri No.7. It is the case of the complainant that on 08th
July 1987 at about 02:00 pm while the complainant was going to his
shop, original accused no.1, who was residing besides the shop of
original complainant, he threatened the original complainant and
asked him to withdraw the Chapter Case filed against him. The
original accused no.1 abused the present appellant. It is also the
case of the complainant that at that time younger brother of the
complainant was reached there. The original accused no.2 gave iron
pipe blow to younger brother of the complainant. At that time,
accused no.1 gave two knife blows to younger brother of the
complainant. Thereafter, the complainant had taken his brother to
Government Hospital. Since the younger brother of the complainant
was having bandages on his eyes and face and since he was not in a
position to identify the accused persons, the present complainant
had filed the present complaint.
Thereafter
the trial was conducted before the learned Magistrate. 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
respondents-accused from the charges alleged against them by the
judgment and order dated 30th September 1995.
Being
aggrieved and dissatisfied with the said judgment and order dated
30th September 1995 passed by the learned Magistrate in
Criminal Case No.2999 of 1987, the appellant has preferred the above
mentioned Criminal Appeal.
I
have heard Mr. M.G. Nanavati, learned Additional Public Prosecutor,
appearing on behalf of the appellant. I have also gone through the
papers and the judgment and order passed by the Trial Court.
Mr.
M.G. Nanavati, learned Additional Public Prosecutor, 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. Mr. Nanavati has vehemently argued and tried to convince
this Court that the learned Magistrate has committed error. He,
therefore, contended that the judgment and order passed by the
learned Magistrate is without appreciating the facts and evidence on
record.
Learned
advocate for the respondents-accused has supported the judgment and
order of the Trial Court and contended that the prosecution has
failed to establish prima-facie case against the accused.
I
have gone through the judgment of the Trial Court. I have also
perused the reasons assigned by the learned Magistrate.
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.
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.
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 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.
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
advocate for the appellant.
After
appreciating the oral as well as documentary evidence, it is found
that there was contradiction in the statements given by the
witnesses. The witnesses have not supported the case of the
complainant and were declared hostile. It is also observed that the
prosecution has failed to prove its case by medical evidence also.
There was contradiction between the complainant, witnesses and
Doctor. It is also observed that complainant has failed to establish
motive behind the incident in question. The Trial Court has also
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
respondents-accused in the present appeal. The prosecution has
miserably failed to prove the case against the respondents-accused.
Thus, from the evidence itself it is established that the
prosecution has not proved its case beyond reasonable doubt.
Learned
counsel for the appellant 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
respondents-accused of the charges levelled against them. 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. Record
and Proceedings to be sent back to the Trial Court, forthwith. Bail
bonds, if any, shall stands cancelled.
(Z.
K. Saiyed, J)
Anup
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