Gujarat High Court Case Information System
Print
CR.A/1009/1993 5/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1009 of 1993
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 ?
=========================================
THE
STATE OF GUJARAT
Versus
TRIBHOVAN
BAKORBHAI VASAVA & 3
=========================================
Appearance
:
MS MINI NAIR ADDL. PUBLIC
PROSECUTOR for Appellant
NOTICE SERVED for Respondent Nos. 1 -
4.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 26/08/2010
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
04.11.1993 passed by the learned JMFC, Kalavad, in Criminal Case No.
542 of 1992, whereby the learned Magistrate has acquitted the
respondents accused from the charges levelled against them.
[2] The
brief facts of the case of prosecution is that on 14.08.1991 at about
8.30 at Village : Dabhali the accused told the complainant to remove
the bundal of karatha, but the complainant refused to remove the
same. Thereupon, the accused persons abused the complainant and
inflicted the injury by bricks. Therefore, the complainant lodged
complaint against the accused respondents for the offences
punishable under Sections 323, 504 and 114 of I.P. Code and Section
135 of the Bombay Police Act. After investigation, the Police filed
charge-sheet against the accused in the Court of learned Magistrate.
[3] To
prove the case against the present respondent accused, the
prosecution has examined in all eight witnesses and also produced
documentary evidence.
[4] At
the end of trial, after recording the statement of the accused under
Section 313 of Cr.P.C., and after hearing the arguments on behalf of
the prosecution and the defence, the learned Magistrate has
acquitted the accused of all the charges levelled against them by
judgment and order dated 25.05.1993 in passed by learned 3rd
Judicial Magistrate, First Class, Bharuch in Criminal Case No.41813
of 1991.
[5] Being
aggrieved by and dissatisfied with the Judgment and order passed by
the trial Court the appellant State has preferred the present
Appeal.
[6] I
have heard learned A.P.P. Ms.Mini Nair on behalf of the appellant
State. I have also gone through the papers and also the Judgment and
order of the trial Court. It has been contended by the 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, it is established that the prosecution has proved all the
ingredients of the evidence against the present respondents.
Learned APP has also taken this Court through the oral as well as
the entire documentary evidence.
[7] 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.
[8] 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.
[9] 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.
[10] 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.
[11] 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.
[12] 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 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.
[13] 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.
[14] 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 Advocate for the appellant.
[15] The
trial court has, after appreciating the oral as well as documentary
evidence, has found that the witnesses have not supported the case
of prosecution. The trial Court has also found that there are
serious lacunae in the evidence of the witnesses. Nothing is
produced on record to rebut the concrete findings of the trial
Court.
[16] 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 charge levelled against the respondent
accused. Thus, from the evidence itself it is established that the
prosecution has not proved its case as alleged against the accused
beyond reasonable doubt.
[17] 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.
[18] 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. 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.
[19] 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.
[20] In
view of above the Appeal is dismissed. Bail bonds, if any, shall
stand cancelled. Record & Proceeding may be sent back to the
trial Court.
(
Z. K. SAIYED, J.)
vijay
Top