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CR.A/2181/2008 2/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2181 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
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
JAJIBHAI
OSAMANBHAI AAMRELIYA - Opponent(s)
=========================================================
Appearance
:
MR
HL JANI, APP for Appellant(s) : 1,
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 05/02/2009
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE KS JHAVERI)
1.0 The
present appeal, under section 378(1)(3) of the Code of Criminal
Procedure, 1973, is directed against the judgment and order of
acquittal dated 31.03.2008 passed by the learned Additional Sessions
Judge & Special Judge, Jamnagar in Special (GEB) Case No. 47 of
2006, whereby the accused has been acquitted from the charges leveled
against him.
2.0 The
brief facts of the prosecution case are as under:
2.1 It
is the case of the prosecution that the respondent accused is a
commercial customer of GEB. On 12.03.2005 the Staff of GEB had
carried out checking in the house of accused and they found that box
of meter was empty and with the help of cable illegally connected
wire with the GEB pillar and without permission committed theft of
2480 volts of Rs.1,03,039.78 paise and as per report the complaint
was filed against the accused.
2.2 Therefore,
complaint with respect to the aforesaid offence was filed against the
respondent with the GEB Police Station, Rajkot, which was registered
as C.R. II No. 380 of 2005 for the offences under Section 135 of the
Indian Electricity Act, 2003. Necessary investigation was carried out
and statements of witnesses were recorded. Thereafter, the
charge-sheet was filed in the Court of learned Additional Sessions
Judge and Special Judge, Jamnagar, which was numbered as Special
(GEB) Case No.48 of 2005. The respondent accused was ordered to
issue with summons and after service of summons the respondent has
appeared before the Court wherein he has not pleaded guilty to the
charges leveled against him and claimed to be tried. Thereafter, the
trial was initiated against the respondent. The prosecution has
examined in all 4 witnesses. The prosecution has also produced and
relied upon 5 documents. Thereafter, after hearing arguments on
behalf of prosecution and the defence, the learned Sessions Judge
has acquitted the accused from the offences alleged him. While
appreciating the evidence on record the learned Judge has observed
that the prosecution has failed to prove the search and seizure of
muddamal and that there was delay in filing the complaint.
2.3 Being
aggrieved by and dissatisfied with the Judgment and Order dated
31.03.2008 passed by the learned Additional Sessions Judge &
Special Judge, Jamnagar in Special (GEB) Case No.48 of 2005, the
appellant State has filed this Appeal.
3.0 It
was contended by learned APP that the judgment and order of the
Sessions Court is against the provisions of law; the Sessions 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 the whole ingredients of the evidence against
the present respondent. Learned APP has also taken this court
through the oral as well as the 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
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.
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 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.
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 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.
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.
4.3 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 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 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.
4.5 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 We
have gone through the judgement and order passed by the trial court.
We 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 the appellant. The trial court has clearly recorded a
finding that the prosecution has failed to examine the expert
witnesses and also recorded the finding that there is delay in
testing the faulty meter Apart from that the Authority has not
proved its case beyond reasonable doubt. Thus, from the evidence
itself it is established that the prosecution has not proved its case
beyond reasonable doubt. Mr. 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.
6.0 In
the above view of the matter, we are of the considered opinion that
the trial court was completely justified in acquitting the respondent
of the charges leveled against him. We 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. We are, 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.
7.0 In
view of above the Appeal is dismissed. The judgment and order dated
31.03.2008 passed by the learned Additional Sessions Judge &
Special Judge, Jamnagar, in Special (GEB) Case No.48 of 2005
acquitting the respondent-accused is hereby confirmed. Bail bonds, if
any, shall stand cancelled.
(K.S.JHAVERI,J.)
(Z.K.SAIYED,
J.)
sas
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