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CR.A/836/2003 1/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 836 of 2003
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
CHANDUBHAI
RANCHHODBHAI GAJERA - Opponent(s)
=========================================================
Appearance
:
MR
PK JANI, PUBLIC PROSECUTOR
for
Appellant(s) : 1,
NOTICE SERVED for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 08/02/2010
ORAL
JUDGMENT
The
present appeal, under section 378(1)(3) of the Code of Criminal
Procedure, 1973, is directed against the judgment and order of
acquittal dated 13.03.2003 passed by the learned Judicial
Magistrate, First Class, Junagadh, in Criminal Case No. 3579 of
1997, whereby the respondent – accused has been acquitted of the
charges leveled against him.
The
brief facts of the prosecution case are that on 4.6.1997 in the
morning when the complainant was alone in her house the accused
(respondent herein) came and made some illegal demand which was
refused by the complainant. Thereafter, as the husband of the
complainant was out of station from the previous day the complainant
was alone at her house, at about 11.00 hours the accused came and
took the complainant in his arm and demanded for sexual intercourse.
However, the complainant escaped from the grip of accused. It is
alleged that at that time the husband of the complainant came and
intervened. The accused started beating the husband of the
complainant and thereafter, after giving threats, he went away.
Thereafter, the complaint for the offences under Sections 354, 448,
323 of I.P. Code has been lodged against the accused respondent
with Mendarda Police Station.
Thereafter,
necessary investigation was carried out and statements of witnesses
were recorded. During the course of investigation, respondent was
arrested and, ultimately, charge-sheet was filed against him before
the court and thereafter the trial was initiated against the
respondent.
To
prove the case against the present accused, the prosecution has
examined the witnesses and also produced documentary evidence.
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 Magistrate acquitted the
respondents accused of all the charges leveled against them by
judgment and order dated 13.03.2003.
Being
aggrieved by and dissatisfied with the aforesaid judgment and order
passed by the trial Court the appellant State has preferred present
appeal.
Heard
learned P.P. Mr. Jani, appearing on behalf of the appellant
State It has been contended by learned PP 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 respondents. Learned PP has also
taken this court through the oral as well as the entire
documentary evidence. Learned PP has also taken this Court through
the entire oral as well as documentary evidence.
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.
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.
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 V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75,
the Court has reiterated the powers of the High Court in such
cases, more particularly in para 16 of the said decision.
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 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.
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 by
the trial court and also considered the submissions made by learned
PP for the appellant-State. From the deposition of the complainant
it appears that the complainant has narrated different facts which
is not stated in her complaint (Exh. 23). The alleged incident has
occurred in a day time, but no neighbour or independent witness is
examined by the prosecution.
The
trial Court, after appreciating the oral as well as documentary
evidence has found that in Medical Certificate (Exh.35) there is no
mention about the injuries sustained by the witness. The trial Court
also found that there is contradiction in the evidence of injured
witness and the Medical Certificate. The trial Court has also found
that the panch witness has not supported the case of prosecution and
he was declared hostile. The trial Court has also found that no
further statement of the complainant was recorded by the Police. The
trial Court has also observed that the place of complainant where
the alleged incident has occurred is on the road, but, the
prosecution has not examined any neighbour as an independent witness
to support its case. The trial Court has also found from the record
that the complainant and her husband are going to do labour work at
the place of accused and the accused is not paying money to them
towards labour work. However, no notice for demanding their dues is
issued to the accused or no witness has been examined to support the
say of complainant. The trial Court has also found that there are
serious lacunae in the evidence of witnesses. Nothing is produced on
record to rebut the concret e findings of the trial Court.
Learned
PP 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.
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.
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. The Judgment and order dated
13.03.2003 passed by the learned Magistrate, in Criminal Case No.
3579 of 1997 is hereby conformed. Bail bonds, if any, shall stand
cancelled.
(Z.K.
SAIYED, J.)
sas
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