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CR.A/535/2002 6/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 535 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 ?
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
JAGDISH
KALIDAS MAKWANA & 1 - Opponent(s)
=========================================================
Appearance
:
MR
HL JANI, LD. ADDL. PUBLIC PROSECUTOR
for
Appellant(s) : 1,
MR IQBAL M MALIK for Opponent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 15/01/2010
ORAL
JUDGMENT
The
appellant-State of Gujarat, has preferred this Appeal under Section
378(1)(3) of the Code of Criminal Procedure, 1973 against the
judgment and order of acquittal dated 16th January 2002
passed by the learned Judicial Magistrate First Class, Modasa, in
Summary Case No.201 of 2001, 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 on 08th
September, 2000, Police Sub Inspector of Meghraj Police Station with
his staff, on prior information kept watch along with the Panchas at
Sarangpur Cross Road, was on petrolling. At that time, one white
colour Armada Jeep bearing No.GJ-7-R-2521 came from Kaliakuwa. On
search of the said Jeep, different kinds of foreign liquor worth
Rs.49,150/- was found. They were in sealed boxes. At that time, the
accused no.1 was driving the Jeep and accused no.2 was with him. The
said foreign liquor was seized from the said Jeep, which was in
conscious possession of the respondents-accused.
On these facts, the complainant had filed complaint.
Therefore,
a complainant with respect to the aforesaid offences was filed
against the respondents.
Necessary investigation was carried out and statements of Panchas
were recorded. Ultimately, the respondents-accused
were charge-sheeted before
the Court of learned Judicial Magistrate First Class, Modasa, which
was numbered as Criminal Case No.201
of 2001. The trial was initiated against the respondents-accused.
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 levelled against them by the
judgment and order dated 16th January 2002.
Being
aggrieved and dissatisfied with the said judgment and order dated
16th January 2002 passed by the learned Judicial
Magistrate First Class, Modasa in Criminal Case No. 201 of 2001, the
appellant-State of Gujarat, has preferred the above mentioned
Criminal Appeal.
I
have heard Mr. H.L. Jani, learned Additional Public Prosecutor,
appearing on behalf of the appellant-State and learned advocate
appearing on behalf of respondents-accused. I have also gone through
the papers and the Judgment and order passed by the Trial Court.
Mr.
H.L. Jani, learned Additional Public Prosecutor for the appellant,
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. 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.
The
Trial Court has, after appreciating the oral as well as documentary
evidence, found that Panchas turned hostile. It is also observed
that there are contradictions in the statements made by the
witnesses. It is also observed that though actually Armada Jeep was
seized, one of the Panchas shown Maruti Car as muddamal. It is also
observed that witnesses were not identified as also liquor bottles
were not sealed with the signatures of witnesses. Analysis was also
not done of the seized liquor. Under these circumstances,
presumption cannot be drawn under Section 116-B of the Act. It is
also observed that prosecution has failed to prove beyond reasonable
doubt that foreign brand liquor was seized from the
respondents-accused.
The Trial Court has 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
Additional Public Prosecutor 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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