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CR.A/863/2000 1/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 863 of 2000
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
MANEKLAL
ALIAS MAKO CHANDULAL PATEL & 17 - Opponent(s)
=========================================================
Appearance
:
MR
MG NANAVATI, LD. ADDL. PUBLIC PROSECUTOR
for
Appellant(s) : 1,
MR YATIN SONI for Opponent(s) : 1 - 18.
MR RE
VARIAVA for Opponent(s) : 1 - 7,9 - 12,14 -
18.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 29/01/2010
ORAL
JUDGMENT
The
appellant has preferred this Appeal under Section 378(1)(3) of the
Code of Criminal Procedure, 1973 against the judgment and order of
acquittal dated 03rd June 2000 passed by the learned
Judicial Magistrate First Class, Mirzapur, Ahmedabad Rural in
Summary Case No. 1229 of 1999, 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 02nd/03rd
March 1999 the complainant Police Inspector raided the premises I.e.
near the Swimming Pool in Pleasant Club situated in the sim of
Village Ghuma. It is the case of the complainant
that Maneklal Chandulal Patel is running gambling den. The
complainant Police Inspector
has raided the said premises and seized Playing Cards and an amount
of Rs.01,01,350/- (Rupees One Lac One Thousand Three Hundred Fifty
Only) in presence of Panchas. Thereafter, for the said offence
complaint was registered against the respondents-accused
in the Court of learned Judicial Magistrate First Class, Mirzapur,
Ahmedabad Rural.
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 03rd June 2000.
Being
aggrieved and dissatisfied with the said judgment and order dated
03rd June 2000 passed by the learned Magistrate in
Criminal Case No. 1229 of 1999, the appellant has preferred the
above mentioned Criminal Appeal.
I
have heard Mr. M.G. Nanavati, learned Additional Public Prosecutor,
for the appellant. I have also gone through the papers and the
judgment and order passed by the Trial Court.
Just
to prove the case of the prosecution, prosecution has produced oral
as well as documentary evidence. Heard Mr. M.G. Nanavati, learned
Additional Public Prosecutor, for the appellant-State. He has taken
me through the evidence of prosecution witnesses. He has vehemently
argued that the learned Judge has not properly considered the oral
as well as documentary evidence produced on record. He has read oral
as well as documentary evidence and vehemently argued that the
complainant-present appellant has prima-facie case. He, therefore,
contended that the judgment and order passed by the learned
Magistrate is without appreciating the facts and evidence on record.
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 the witnesses have not supported the case of
the prosecution. It is also observed that all the witnesses have
turned hostile. Prosecution has also not taken evidence regarding
the ownership of the pleasant Club and has not recorded statement of
the owner of the pleasant Club. It is also observed that the
prosecution has failed to prove Warrant at Exh. 13. It is
established that when a person is booked under Gambling, game is
required to be proved. It is also observed that the prosecution has
failed to prove the game of gambling. 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
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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