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CR.A/2144/2009 5/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2144 of 2009
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
KOLI
RUDA KARSHANBHAI - Opponent(s)
=========================================================
Appearance
:
MR. M.G.
NANAVATI, LD. ADDL.PUBLIC PROSECUTOR
for
Appellant(s) : 1,
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 20/01/2010
ORAL
ORDER
1. The
appellant original complainant has preferred this Appeal under
Section 378(1)(3) of the Code of Criminal Procedure, 1973, against
the Judgment and order dated 13.08.2006 passed by the learned
Additional Sessions Judge, & 3rd Fast Track Court,
Junagadh, in Criminal Revision No. 67 of 2006, whereby the learned
Judge has set aside the judgment and order dated 17.11.2006 passed by
the learned J.M.F.C., Visavadar in Criminal Case No. 177 of 1990, and
acquitted the respondent original accused from the charges
leveled against him.
2. The
short facts of the prosecution case as per complaint that the
appellant was found in possession of Sag-wood from his residential
house at his village Mundiya Ravani after cutting the said Sag-wood,
two days ago from Sakara Forest and Ravani village from the date of
complaint. The offence under Section 26(f) of the Indian Forest Act
was registered for the violation of the said provision and the
complaint was filed by Range Forest Officer and after investigation,
the said offence having sufficient evidence, filed charge-sheet in
the court of law.
3. Thereafter
the trial was conducted before the learned Magistrate. The
prosecution has examined the witnesses and also relied upon the
documentary evidence. After considering the oral as well as
documentary evidence the learned Magistrate has held the respondent
accused guilty for the offences punishable under Section 26( f ) of
the Indian Forest Act and awarded sentence of two months R.I. with
fine of Rs. 500/- i/d to under-go S.I. for one month.
4. Against
the said judgment the respondent accused had preferred Criminal
Appeal No. 67 of 2006 before the Sessions Court, Junagadh.
The said appeal was heard by the learned Additional Sessions Judge &
3rd
F.T.C. , Junagadh and after hearing the parties, the learned
Judge has set aside the judgment and order passed by the trial Court,
vide judgment and order dated 13.8.2009.
5. Being
aggrieved and dissatisfied with the said Judgment and order dated
13.08.2009 passed by the learned Additional Sessions Judge & 3rd
F.T.C., Junagadh, in above Criminal Revision, the appellant State
has preferred the above mentioned Criminal Appeal.
6. I
have heard learned A.P.P. appearing on behalf of the appellant
State. I have also gone through the papers and the Judgment and
order passed by the Court below.
7. Learned
APP for the appellant has taken me through the evidence of
prosecution witnesses and the documentary evidence and contended
that from the above evidence it is established that the prosecution
has successfully proved its case beyond reasonable doubt. He has
contended that the trial court has rightly held the respondent-
accused guilty for the offences alleged against him and, therefore,
the Sessions Court, in Appeal, should not have interfered with the
said findings of the trial Court. He has contended that there is no
personal enmity between the accused and the complainant and
therefore, there is no question to falsely involve the accused in
commission of offence. Therefore, the learned lower Appellate Judge
has committed grave error in not believing the case of the
complainant. He, therefore, contended that the judgment and order
passed by the learned Additional Sessions Judge, setting aside the
judgment of the trial court, is without appreciating the facts and
evidence on record.
8. I
have gone through the Judgment of the trial Court as well as of the
Sessions Court. I have also perused the reasons assigned by both the
Courts.
9. 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.
10. 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 conclusion 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.
11. 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 courts below.
12. 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, para -16 of the said decision.
13. 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.
14. 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.
15. I
have gone through the judgment and order passed by the trial court as
well as of the Sessions Court. I have also perused the oral as well
as documentary evidence led before the courts below and also
considered the
submissions made by learned Advocate for the appellant.
16. I
have perused judgments and orders of the learned JMFC and learned
additional Sessions Judge also. From para 23 of the judgment
concerned learned additional Sessions Judge, has observed oral as
well as documentary evidence and he has observed that learned JMFC,
has committed the error in considering the evidence produced on
record. Today, learned APP for the appellant Mr. M.G. Nanavati, is
unable to show that which type of error has committed by the learned
Additional Sessions Judge.
17. From
the judgment of the Sessions Court, it appears that there is material
contradiction regarding execution of Panchnama. The Sessions Court
has found that the complainant was not authorized to file complaint
against the accused. There is material contradiction in the evidence
of witnesses who are of the same department.
18. Thus,
the appellant could not bring home the charge against the respondent
accused in the present Appeal. The prosecution has miserably
failed to prove the case against the appellant accused. Thus,
from the evidence itself it is established that the prosecution has
not proved its case beyond reasonable doubt.
19. Learned
Advocate 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
Appellate 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.
20. In
above view of the matter, I am of the considered opinion that the
Sessions Court was completely justified in setting aside the judgment
of the trial court and acquitting the respondent accused of the
charges leveled against him. I find that the findings recorded by
the Appellate court are absolutely just and proper and in recording
the said findings, no illegality or infirmity has been committed by
it.
21. 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.
22. In
view of above the Appeal is dismissed. The judgment and order
dated 13.08.2006 passed by the learned Additional Sessions Judge &
3rd
Fast Track Court, Junagadh, in Criminal Revision No. 67 of 2006,
setting aside the judgment and order dated 17.11.2006 passed by the
learned J.M.F.C., Visavadar in Criminal Case No. 177 of 1990, holding
the respondent accused guilty of the charged levelled against
him, is hereby
confirmed. Bail bonds, if any, shall stand canceslled. R & P may
be sent back to the trial Court.
(Z.K.
SAIYED,J.)
pawan
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