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CR.A/1236/2004 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1236 of 2004
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
NANDKISHORE
NARAYAN DESHPANDEY & 7 - Opponent(s)
=========================================================
Appearance
:
MR
HL JANI, LD. ADDL. PUBLIC PROSECUTOR
for
Appellant(s) : 1,
MR JL HAJARE for Opponent(s) : 1 -
8.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 25/01/2010
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 05th April 2004
passed by the learned Judicial Metropolitan Magistrate, Court No.15,
Ahmedabad in Criminal Case No. 2654 of 1995, 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 complainant was
serving as Regional Manager in the office of Central Warehousing
Corporation, situated at Mahalaxmi Cross-roads. The accused no.6
was serving as Stenographer in the office of the complainant at
Adalaj Branch. It is also the case of the complainant that because
of urgent need of a Stenographer, the complainant transferred the
accused no.6 to Kandla Branch from Adalaj Branch. Because of this,
all the accused were gathered in the cabin of the complainant at
about 05:00 pm and asked him that why the complainant has
transferred the accused no.6 to Kandla branch. Though the
complainant answered that as there was urgent need of Stenographer
at Kandla Branch, the accused no.6 was transferred, the accused
persons persisted to withdraw the said transfer order of accused
no.6 as the accused no.6 is having family problem. The complainant
thereupon informed the accused no.6 to give in writing his problem
and he will think over it; however, the complainant refused to
withdraw the transfer order forthwith. On hearing this, accused got
excited and started beating the complainant with fist blow. To save
him from further fist blows, the complainant gave writing to the
accused withdrawing the transfer order of the accused no.6.
Therefore, for the said offences, the complainant had filed the
complainant against the accused. The accused were charge-sheeted on
07th December 1995 in the court of learned Metropolitan
Magistrate, Court No.15, Ahmedabad.
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 05th April 2004.
Being
aggrieved and dissatisfied with the said judgment and order dated
05th April 2004 passed by the learned Magistrate in
Criminal Case No. 2654 of 1995, 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.
After
appreciating the oral as well as documentary evidence, it appears
that respondents-accused
were charge-sheeted for the offences punishable under Sections 143,
147, 149, 452, 342, 323, 332, 426 of the Indian Penal Code. It
appears from the charges that the respondents-accused were charged
of forming unlawful assembly. The main ingredient of the said law is
required to be proved through oral as well as documentary evidence
and when the prosecution has failed to prove their case beyond
reasonable doubt then no question can be arise for the offence of
section 119 of the Indian Penal Code. The prosecution has failed to
prove common object of the unlawful assembly. The prosecution has
failed to prove the presence of the respondents-accused
as a member of unlawful assembly. The prosecution has failed to
prove injury sustained by the complainant beyond reasonable doubt.
Thus, the prosecution has failed to prove beyond reasonable doubt
the case against the accused. The Trial Court has also observed that
there are serious lacunae 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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