Gujarat High Court
State vs Chaturbhai on 24 November, 2010
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
Print
CR.A/627/2010 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 627 of 2010
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 & 1 - Appellant(s)
Versus
CHATURBHAI
RANCHHODBHAI GARI - Opponent(s)
=========================================================
Appearance
:
MR
HH PARIKH, APP for Appellant(s) : 1 - 2.
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 24/11/2010
ORAL
JUDGMENT
The appellant - State of Gujarat, has preferred this Appeal under Section 378(1)(4) of the Code of Criminal Procedure against the Judgment and order dated 29.08.2009 passed by the learned Additional Sessions Judge, Fast Track Court, Dahod, in Criminal Appeal No. 46 of 2004, whereby the learned Judge has set aside the Judgment and order dated 15.1.2002 passed by the learned Judicial Magistrate, First Class, Dahod in Criminal Case No. 596 of 1989 and acquitted the respondent - original accused from the charges levelled against him.
The short facts of the prosecution case is that the complainant - Food Inspector had gone for checking of milk and at that time the accused was found selling milk. The complainant had purchased the milk and stored in the three different glass bottles and sealed in presence of Panch witness and thereafter slip was tagged on the said bottles. The panchnama was prepared and thereafter one part of sample was sent to Public analyst, Vadodara and two part of said sample was sent to LHO. The Report from the Public Analyst, Vadodara, was received in which the milk was found adulterated. Therefore, the case was filed and summons was issued to the respondent - original accused. The charge was framed against the accused and trial was conducted. At the end of trial the learned Magistrate has held the respondent - original accused guilty for the offence under Section 16(1)(A)(1)(2) of the Prevention of Food Adulteration Act and sentenced him to suffer RI for one year and to pay fine of Rs.2,000/- i/d to suffer imprisonment for three months.
Against the said Judgment the respondent - accused had preferred Criminal Appeal No. 46 of 2004 before the Sessions Court. The said Appeal was heard by the learned Additional Sessions Judge, Dahod. The learned Judge, after hearing the parties, set aside the Judgment and order of learned Judicial Magistrate, First Class, Dahod, vide Judgment and order dated 29.08.2009.
Being aggrieved and dissatisfied with the said Judgment and order dated 29.08.2009 passed by the learned Additional Sessions Judge & Presiding Officer, Fast Track Court, Dahod, in above Criminal Appeal, the appellant - State of Gujarat, has preferred the present Criminal Appeal.
I have heard learned APP Mr. H.H. Parikh, appearing on behalf of the appellant - State. I have also gone through the papers and the Judgment and order passed by the Court below.
Learned A.P.P. for the appellant has taken me through the evidence of prosecution witnesses and the documentary evidence and submitted 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 witnesses have supported the case of the prosecution and the learned Judge has committed grave error in disbelieving and discarding the evidence of witnesses. He, therefore, contended that the Judgment and order passed by the learned Sessions Judge, setting aside the Judgment of the trial Court, is without appreciating the facts and evidence on record.
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.
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.
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."
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 court below.
12 Even in a 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. 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.
13. 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.
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.
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 court below and also considered the submissions made by learned Advocate for the appellant.
The Sessions court has, after appreciating the oral as well as documentary evidence, found that in the analysis report proper percentage of fate of milk was not explained. The learned Judge has found that the judgment of the trial Court is against the evidence produced on record. The learned Judge has also found that in a statement of accused, recorded under Section 313 Cr.P.C. questions were made in a vague manner and proper explanation was not obtained. The learned Judge has also found that proper opportunity was not given to the respondent - accused. The learned Judge has also found that the prosecution has not examined material witness. The learned Judge has clearly found that the reasons assigned by the learned Magistrate for recording the Judgment of conviction in respect of the charges alleged against the respondent - accused are not based on the evidence produced by the prosecution. Nothing is produced on record of this appeal to rebut the concrete findings of the Sessions Court.
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.
Learned A.P.P. is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Sessions 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.
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 Sessions court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.
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.
In view of above the Appeal is dismissed. The judgment and order dated 29.08.2009 passed by the learned Additional Sessions Judge & Presiding Officer, Fast Track Court, Dahod, in Criminal Appeal No. 46 of 2004, setting aside the Judgment and order dated 15.1.2002 passed by the learned Judicial Magistrate, First Class, Dahod, in Criminal Case No. 596 of 1989 holding the respondent - accused guilty of the charges levelled against him, is hereby confirmed. Bail bonds, if any, shall stand cancelled. R & P may be sent back to the trial Court.
(Z.K.SAIYED, J.) sas Top