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Gujarat High Court
State vs The Present Appeal on 29 January, 2010
Author: Z.K.Saiyed,&Nbsp;
   Gujarat High Court Case Information System 

  
  
    

 
 
    	      
         
	    
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CR.A/727/1988	 6/ 8	JUDGMENT 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

CRIMINAL
APPEAL No. 727 of 1988
 

 
 
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
 

NAGINBHAI
DAHYABHAI PATEL - Opponent(s)
 

=========================================================
 
Appearance
: 
MR
HL JANI Ld. APP for Appellant(s) : 1, 
MR DHIRENDRA MEHTA for
Opponent(s) : 1, 
MR NL PATEL for Opponent(s) : 1, 
MR SHAIVANG D
MEHTA for Opponent(s) :
1, 
=========================================================


 
	  
	 
	  
		 
			 

CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE Z.K.SAIYED
		
	

 

 
 


 

Date
: 29/01/2010 

 

 
 
ORAL
JUDGMENT

1.0
The present appeal, under section 378 of the Code of Criminal
Procedure, 1973, is directed against the judgment and order of
acquittal dated 31.5.1988 passed by the learned Chief Judicial
Magistrate, Surat in Criminal Case No. 484/1984, whereby the accused
has been acquitted of the charges under sec. 409 of IPC, leveled
against him.

2.0
The brief facts of the prosecution case are as under:

2.1
As per the case of the prosecution, the respondent-accused on
8.5.1979 was serving as Talati-cum-Mantri under the Taluka
Development Officer, Chorasi and he collected the amount of Rs.
384/- by way of water tax and house tax etc. and not credited the
said amount in Rojmel and thereby the respondent-accused has
misappropriated the said amount. Thereafter, the respondent has
retained the said amount for temporary period and thereafter, he
deposited the said amount on 8.9.1980.

2.2
Therefore, a complaint with respect to the aforesaid offence was
filed against the respondent with the Udhana Police Station, Surat.
Necessary investigation was carried out and statements of several
witnesses were recorded. During the course of investigation,
respondent was arrested and, ultimately, charge-sheet was filed
against him before the court of learned Chief Judicial Magistrate,
Surat, which was numbered as Criminal Case No.484/1984. The trial was
initiated against the respondent.

2.3
To prove the case against the present accused, the prosecution has
examined 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 hearing arguments on behalf of
prosecution and the defence, the learned trial Judge acquitted the
respondent of all the charges leveled against him by judgment and
order dated 31.5.1988.

2.5
Being aggrieved by and dissatisfied with the aforesaid judgment and
order passed by the trial Court the appellant State has preferred the
present 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 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
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 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 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 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.

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 by
the trial court and also considered the submissions made by learned
APP for the appellant-State. The trial court while considering the
oral as well as documentary evidence has clearly observed that the
prosecution has miserably failed to prove the case against the
accused beyond any reasonable doubt. The ingredients of sec. 405 is
also not proved. From the evidence, it appears that the prosecution
has failed to prove and establish the entrustment and dominion over
the property. 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
Mr. HL 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, I am of the considered opinion that
the trial court was completely justified in acquitting the respondent
of the charges leveled against him.

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.)

mandora/

   

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