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CR.A/1596/2003 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1596 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 ?
-Yes.
2
To be
referred to the Reporter or not ? -No.
3
Whether
their Lordships wish to see the fair copy of the judgment ?
-No.
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 ? -No.
5
Whether
it is to be circulated to the civil judge ? -No.
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
MAKWANA
CHEHUJI BHAVANJI - Opponent(s)
=========================================================
Appearance
:
MR
HL JANI, APP for
Appellant(s) : 1,
NOTICE NOT RECD BACK for Opponent(s) : 1,
NOTICE
SERVED for Opponent(s) : 1,
MR VM PANCHOLI for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 16/02/2010
ORAL
JUDGMENT
1) The
present appeal, under Section-378 of the Code of Criminal Procedure,
1973, is directed against the judgement and order of acquittal dated
29/8/2003 passed by the learned Third Joint Judicial Magistrate
(First Class), Gandhinagar in Criminal Case No.3686 of 1997 whereby
the accused was acquitted of the charges leveled against him.
2) The
brief facts of the prosecution case are as under:
2.1) On
30/1/1997 at about 21:00 hours, the accused was found in drunken
condition at public place at village Aadivada without any pass and
permit and thereby committed offence punishable under
Section-66(1)(B), 85(1)(3) of Bombay Prohibition Act. The
complainant has therefore filed a complaint before Sector-21 Police
Station, Gandhinagar. Necessary investigation was carried out and
statements of witnesses were recorded. After completion of the
investigation the charge sheet came to be filed against the accused
before the Court of learned Joint Judicial Magistrate (First Class),
Gandhinagar for the alleged offences which was numbered as Criminal
Case No.3686 of 1997. The trial was initiated against the
respondent-accused accordingly.
2.2) To
prove the guilt against the accused the prosecution has examined
three witnesses and in order to support the case, the prosecution has
produced several documentary evidences.
2.3) At
the end of trial, after recording the statement of the accused
person under Section-313 of the Criminal Procedure Code and after
hearing arguments on behalf of prosecution and the defence, the
learned Joint Judicial Magistrate (First Class), Gandhinagar has
acquitted the respondent-accused of all the charges leveled against
him by judgement and order dated 29/8/2003 which is impugned in the
present appeal.
3) It
was contended by learned APP Mr. H. L. Jani that the judgment and
order of the learned Joint Judicial Magistrate (First Class),
Gandhinagar is not proper, legal and it is erroneous. He has also
argued that the learned Joint Judicial Magistrate has not considered
properly the evidence of witnesses. He has submitted that the Court
below 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 evidence
against the present respondent-accused. Learned APP has also taken
this Court through the oral as well as the entire documentary
evidence. He submitted that the prosecution witness had clearly
deposed in his deposition that the respondent-accused was found
committing offence punishable under Sections-66(1)(B), 85(1)(3) of
Bombay Prohibition Act. He further submitted that there was no reason
for the learned Joint Judicial Magistrate to disbelieve the
prosecution case and to acquit the respondent-accused.
4) From
the respondent-accused side, heard learned counsel Mr. Nasir Saiyed
for learned advocate Mr. V. M. Pancholi. He has read oral as well as
documentary evidences and contended that evidence of the doctor is
totally in contrary manner and therefore the judgment and order
passed by the learned Joint Judicial Magistrate (First Class),
Gandhinagar is in proper manner and there is no need to interfere
with the same.
5) 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
judgement 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.
5.1) 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.
5.2) 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.
5.3) 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.
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 judgement
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 evidence 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.
5.4) 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.
5.5) It
is also a settled legal position that in acquittal appeal, the
appellate court is not required to re-write the judgement 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
wherein it is held as under:
& This
court has observed in Girija Nandini Devi V. Bigendra Nandini
Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty
of the appellate court when it agrees with the view of the trial
court on the evidence to repeat the narration of the evidence or to
reiterate the reasons given by the trial court expression of general
agreement with the reasons given by the Court the decision of which
is under appeal, will ordinarily suffice.
5.6) 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.
6) I
have gone through the judgement and order passed by the Joint
Judicial Magistrate (First Class), Gandhinagar. I have also perused
the oral as well as documentary evidence led by the trial court and
also considered the submissions made by learned Advocate for both the
parties.
5.1) The
entire prosecution case rests on prosecution witnesses and oral as
well as documentary evidences. It appears from the oral evidences of
witnesses and documentary evidence produced before the Court that the
prosecution has failed to prove the case against the
respondent-accused. Even certificate of doctor and oral evidence of
doctor are contrary to each other and therefore from the medical
evidences also the prosecution has failed to prove the case against
the accused. Hence it appears that there is serious lacuna in the
prosecution case and the prosecution has failed to establish the case
against the respondent-accused. Therefore the Trial Court has
rightly passed the order of acquittal in favour of the accused and I
do not find any reason to interfere with the said finding of the
Trial Court.
5.2) Thus,
from the evidence itself it is established that the prosecution has
not proved its case beyond reasonable doubt. Mr. H.L. Jani, learned
APP 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.
6) 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.
(Z.K.
SAIYED, J.)
(ila)
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