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CR.A/832/1996 6/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 832 of 1996
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
SULEMANBHAI
IBRAHIMBHAI MODAN & 3 - Opponent(s)
=========================================================
Appearance
:
MR
A.J. DESAI, LD. ADDL. PUBLIC
PROSECUTOR for
Appellant(s) : 1,
NOTICE SERVED for Opponent(s) : 1 - 4.
MR
NAGIN N GANDHI for Opponent(s) : 1 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 17/02/2010
ORAL
JUDGMENT
1. The
present appeal, under Section 378 of the Code of Criminal Procedure,
1973, is directed against the Judgment and order of acquittal dated
9.7.1996 passed by the learned JMFC, Dhandhuka, in Criminal Case
No. 71 of 1991 whereby the learned Magistrate has acquitted the
respondents accused
from the charges alleged against them.
2. The
brief facts of the prosecution case are as under:
2.1. The
facts of the prosecution are that on 24.5.1990 at 10.30 in the night,
when the complainant and his brother were at Dhandhuka Bus station
for going to Ahmadabad, at that time the accused came and attacked
the complainant and injured him. It is also alleged that the accused
have also taken away wrist watch of the complainant. Therefore, the
complaint came to be filed against the accused at Dhandhuka Police
Station.
2.2. On
the basis of the said complaint. Necessary
investigation was carried out and statements of several witnesses
were recorded. During the course of investigation,
respondents-accused were arrested and, ultimately, charge-sheet was
filed against them before the Court of learned JMFC, Dhandhuka,
Which was numbered as Criminal Case No. 71 of
1991. The trial was initiated against the respondents.
2.3 To
prove the case against the present accused, the prosecution has
examined 14 witnesses and also produced documentary evidence.
2.4 At
the end of trial, after recording the statement of the accused under
Section 313 of Cr. P. C., and after hearing arguments on behalf of
prosecution and the defence, the learned trial judge acquitted the
respondents of all the charges leveled against them by judgment and
order dated 9.7.1996.
2.5. Being
aggrieved and dissatisfied with the aforesaid Judgment and order
passed by the learned trial Court the appellant State of
Gujarat, has preferred the present Criminal Appeal.
3.0. It
was contended by learned APP 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 all the ingredients against the respondents.
Learned APP has also taken this court through the oral as well as
entire documentary evidence.
4.0. 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.
4.1
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 gui9lty 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.
4.2. 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.
4.3. 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 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 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.
4.4. 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.
4.5. 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,
wherein it is held as under
…This court has observed in Girija Nandini Devi Vs. Bigendra
Nandini Choudhary (1967)1 SCR 93: (AIR 1967 SC 1134) 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
4.6. 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.
5.0. 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 APP for the appellant-State. As per say of witness No.1
(exhibit -28) offence took place on 21.5.1990 when he was present
at the place of offence at that time all respondents original
accused came there and attacked on him. Accused gave fist blow and
caused injuries to him. I have also perused oral evidence of the
complaint and also the oral evidence of Medical expert. As per the
evidence of Medical officer, he has not found any injury on the body
of the complainant. In the medical certificate also the so called
injuries are not mentioned. Medical Officer has not stated in his
deposition about the injuries received by the injured. The trial
Court has also observed that there is contradiction in the evidence
of complainant and the facts narrated in the complaint, it is totally
not proved . Looking to the above evidence it is established that
the
prosecution has miserably failed to prove the case against the
accused beyond any reasonable doubt. Even in the present appeal,
nothing is produced or pointed out to rebut the conclusion of the
trial Court.
Thus, from the evidence itself it is established that the prosecution
has not proved its case beyond reasonable doubt.
6.0. Learned
APP 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.
6.1. In
above view of the matter, I am of the considered opinion that the
trial court was completely justified in acquitting the respondents of
the charges leveled against them.
7.0. 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.
8.0. 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. R
& P to be sent back to the trial Court,forthwith. Bail bond, if
any, stands cancelled.
(Z.K.SAIYED,
J.)
pawan
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